Public sector data breaches: what should be done?
Should staff, not the taxpayer, pay fines for public sector data breaches? This is a question posed by UKauthorITy, a publisher of IT related news for the local sector. It quotes the TaxPayer’s Alliance:
Of course people in these situations should be held personally liable as if the council is fined, then that fine is paid for out of the local council taxes. It essence it is a double tax – once for collecting/storing the data and again for losing it.
Should staff, not the taxpayer, pay fines for public sector data breaches?
Grant Taylor, UK VP of CryptZone is agin the idea of fining the staff rather than the organization, and puts forward a strong case. “If the penalties are applied to nominated senior managers in the relevant NHS trust, council or other government agency – as is the case with corporate responsibility, for example within transportation authorities – then the public sector could be forced into building liability insurance remuneration into management salaries, as has been required by medical professionals for some time,” he argues. This will simply have the effect of “moving the cost of data breach penalties across the government spreadsheet – with the taxpayer continuing to foot the bill.”
Grant believes that education and open discussion is the solution. “But to reduce the argument to individual ICO penalties within the workforce would only result in the departure of the most talented member of staff – who will be streamed off into the private sector – with predictable results. This is what makes this argument something of a non-starter in our opinion,” he concludes.
I sort of agree; but I don’t think education will ever be enough to protect our data. The bottom line is the current arrangements just are not working. Personal data continues to be lost, councils are fined, and the ‘double tax’ described by the TaxPayer’s Alliance is a reality. But potential remedies exist, and always have existed, without any action from the ICO. It is the concept of responsibility – when things go wrong, there is always someone at fault.
Consider this. Organizations will have procedures that are part of the security policy and part of the employment contract. If these procedures are followed, then data will not be lost. If they are followed and data is still lost, then the author of the procedures is responsible because he or she simply didn’t do the job properly. If the procedures are not followed and data is lost, then the person who loses the data is responsible because he or she didn’t follow procedures. Because the procedures are part of the employment contract, failure to follow them is a disciplinary offence. It’s not a case of the ICO fining individual staff, it’s a case of the organization sacking staff who haven’t done their job.
The advantage of this simple approach is that it doesn’t frighten off good staff (good staff will always be confident in their own abilities), but it does weed out poor staff. And it doesn’t cost the taxpayer an additional penny.
There are even in-built safeguards in this approach. Organizations always have bullies. Middle managers at fault will generally blame their staff. But that’s why we have employment protection laws and tribunals. If a scapegoat is selected and sacked to protect a manager, that scapegoat has recourse to the law. So we don’t need to fine individual staff or the organization. We don’t even need the ICO. We just need to do what we always could do: in the event of a data breach, the person responsible should automatically be sacked.