The need to look beyond cyber

elevenM Principal Pete Quigley explores whether a siloed mindset is constraining the value digital risk professionals can bring to organisations and their clients.

I was lucky in the early 2010s to be consulting into Australia’s financial services industry when AWS came to town. I saw first-hand the internal struggles between business and technology teams who wanted to adopt a cloud-first strategy and risk, privacy and security teams who felt they were giving away the keys to the castle.  

Based on my position at the time with PwC, I had a number of fireside chats with the technology risk team from APRA, Australia’s financial services regulator. APRA foreshadowed an impending situation in which institutions would become reliant on digital channels to service their customers, but would lack visibility into what individual services and vendors made up those channels.  

Fast forward a decade and most revenue producing digital channels leverage a multitude of vendors to provide critical online services. One such widely-used vendor who has been hitting the headlines recently is Akamai. 

Akamai provides a number of services to optimise and protect digital channels. The nature of these services requires that you allow Akamai to manage critical digital services like Domain Name System (DNS). For those unfamiliar with DNS, it acts as the phonebook of the internet and allows users to connect to websites using domain names such as elevenM.com, instead of IP addresses.  

DNS is commonly considered to be a fragile system. When there are errors in the use or updating of this phonebook, users can’t find websites. This was the case with Akamai recently, whose DNS failure led to a massive internet outage

When I am asked what elevenM does, I usually revert to our tagline of ‘specialist cyber, privacy and data governance professionals’. I say that because it is what people understand and can draw a line to specific services and, indeed, specific outcomes. Within elevenM, however, we talk in terms of digital risk – the risk our clients face when operating in a digital economy.  

The outage caused by a bug in Akamai’s DNS service was not cyber, privacy or data governance related. In fact Akamai was at pains to say the issue “was not a result of a cyberattack”, even though it had very little else to say about the root cause. 

But the issue still had a significant impact on the availability of the digital channels of a large portion of the internet, and thus on the trust and confidence of users of those services – which is arguably ultimately what our industry is about. 

So, is it time we stop talking about specific delivery-focused silos and start thinking in terms of the customer’s digital experience? To more holistically assess risks to those digital experiences and how we are effectively measuring and managing those risks?  

Rotting fish: The need to improve cyber culture

elevenM’s newest recruit Jasmine Logaraj shares her thoughts on improving the culture within the cyber security industry, and how that will help to defend cyber threats.

This week, I had the opportunity to attend The CyberShift Alliance’s discussion “Addressing workplace culture in the cyber security sector.” The CyberShift Alliance is a collaboration between several associations including ISACA SheLeadsTech, FITT, CISO Lens, AWSN, the Australian Signal Directorate, AustCyber, ISC2 and AISA, DOTM, EY and Forrester Researcher, with the goal of addressing culture change within security. This alliance formed from an earlier International Women’s Day event run by AWSN and ISACA.

The purpose of the discussion this week was to raise awareness of toxicity in the cyber security industry. Speaker Jinan Budge, Principal Analyst at Forrester, described the main reasons for toxicity in the industry as being lack of organisational support, ego, and low leadership maturity.

Poor workplace culture is preventing good talent from joining the industry and making it harder to retain it. It is hindering the quality of work and preventing us as a nation from tackling cyber threats in the most inclusive, collaborative and, therefore, the most optimum way.

I asked Jinan and the panelists during the Q&A session to elaborate on the idea of toxicity being a barrier to young talent. Panelist Jacqui Kernot, Partner in Cyber Security at EY, said the reason it was hard to hire good talent was not because of a shortage of professionals with STEM skills, but because the industry needs to become a better place to work.

As cyber security professionals, we need to make this industry a more exciting and happier place. When recruiting, employers need to consider not only whether the employees are properly skilled, but whether they are the right fit for a good workplace culture, and in turn, whether their company is worthy of such wholesome candidates. Knowledge can be taught. Personality cannot.

Another interesting point raised during the discussion was the inability to speak out about bad behaviour in the cyber security industry. Jinan surveyed her professional network and found that 65% of respondents voted it to be “career suicide” to speak up about workplace problems, highlighting a fear of potential punishment for doing so. 

Changing this consensus relies on us as cyber security professionals leading the way. As Jacqui pointed out: “the fish rots from the head.” It is not a HR problem, but something to be fixed at the leadership level and not denied or swept under the rug. If companies do not address these problems, they will continue to lose good talent, and in turn waste money, time, and effort, leaving them with fewer employees and a lessened reputation. Akin to our efforts to create a security-focused culture in our clients, at elevenM we believe good workplace culture similarly requires an effort to foster shared values through leadership and role-modeling.

I am grateful that there are individuals such as Jinan, Jacqui and James working in my industry who realise the importance of fostering a good workplace culture. With leaders like these, I remain hopeful for the future.

Of Mice and Coin

elevenM’s Peter Quigley takes a closer look at what Australia can do in the face of a modern scourge – ransomware – as governments up the ante against the threat.

Plummeting winter temperatures in Australia have led to an unexpected threat for car and home owners: rats and mice. Like most of us, these rodents are trying to find a place to take refuge from the cold and the resulting damage has been significant.

The scale of this threat has led major insurers to reject many claims made, stating that their insurance only protects against vermin infestation as a flow-on effect from a fire or flood.

As a risk person, I have always found the insurance industry interesting. At its core, it is a system which derives profit from the analysis of risk data. This is why I keep an eye on what the industry is saying about cyber security.

Like homeowners in Australia, companies around the world are now having insurance claims rejected – not for vermin but for infestation of a different kind: ransomware.

As you will have undoubtably read, ransomware incidents have significantly increased over the past year. The reasons for this have been well reported and we won’t delve into them here. What I want to talk about is what happens to a cyber risk when, like vermin infestation, it becomes uninsurable?

If companies are not able to insure against a potential risk event, then they have two options: (i) accept the risk and wear the cost of that event should it happen or (ii) not engage in the practices which may lead to that risk event. In the case of ransomware (and most cyber threats), given the digital nature of every business today, the latter is not a viable option. So, we are left with the former – that is, taking the position of, as we say in Australia: “She’ll be right”.

If, however, businesses begin to fold and the broader economy is impacted, there’s a case to be made that the government needs to step in. In Australia, we are seeing building momentum as ransomware is yielded as a political stick – most recently by Tim Watts, Australia’s Shadow Minister for Cyber Security, calling for A National Ransomware Strategy. Ransomware was also on agenda at the G7 summit in London last weekend, with various commitments made to fight the threat collaboratively.

What governments can do to combat this technical and geopolitical threat in real terms is unknown. Mr Watt’s strategy contemplates a variety of measures including increased law enforcement, crackdowns on rogue bitcoin exchanges and various sanctions.  

The strategy also advocates for Australian organisations to develop a reputation for being less likely to pay ransoms (through imposing controls on ransomware payments), so that attackers’ return on investment for targeting Australian organisations might fall in comparison to those in other countries. While making yourself a less attractive target is a common and legitimate strategy in cyber security, I tend not to agree with this approach to ransom payments. Due to the random nature of ransomware attacks (often enabled by automated services scanning and prodding IP’s across the internet) it seems likely to me that Australian organisations will continue to be heavily impacted by ransomware – regardless of policies that limit or regulate their ability to pay ransoms.

As noted earlier, ransomware is both a technical and geopolitical problem. Looking at both these aspects in detail and asking what can be done, I always arrive at the following:

  • Technical – Ultimately, cyber criminals are most likely to move on if they encounter mature cyber defences. As done in Singapore, Australia should mandate a minimum set of cyber security controls for all critical infrastructure as part of current changes being considered to security legislation. Outline what those controls are and encourage private businesses to adopt those controls. The Australian Government should publish threat data on recent ransomware events to support those charged with the operation of cyber controls to update as required.
  • Geopolitical – Not to appear too cynical, but I maintain low expectations on the current and immediate impact of geopolitical efforts on the ransomware landscape. It’s widely believed that ransomware gangs operate with impunity in some jurisdictions, despite those jurisdictions agreeing to international norms. As these geopolitical efforts slowly gather pace, it’s all the more reason to enhance the defensive maturity of organisations in the meantime.

This is just my view. In the words of John Steinbeck, “Guy don’t need no sense to be a nice fella.”

PAW 2021 – That’s a wrap

Privacy Awareness Week is 5-9 May 2021.

In our final post for Privacy Awareness Week (PAW), we share our five highlights and observations from the week.

1. A privacy win during PAW

The timing may have been coincidental, but we’ll take it. There was a notable win for privacy this week with the Senate Committee that reviewed the Government’s inter-agency data sharing law – the Data Availability and Transparency Bill – recommending the bill not be passed in its current form, noting a need for stronger privacy protections and security measures (among other things).

Our advocacy for greater attention to the privacy risks in the bill (as part of a collaborative submission with other privacy colleagues) was quoted in the Senate Committee’s report and in the news media this week.


2. Momentum building

We were energised to hear this week just how much focus and attention there is on privacy, particularly from a regulatory perspective. At a panel of regional privacy regulators hosted by the International Association of Privacy Professionals on Tuesday, we got insight into the breadth of activity currently underway.

At the Commonwealth level, clearly the focus is on the review of the Privacy Act. The States and Territories are also running various projects to bolster privacy protections, from the privacy officers project in Victoria, mandatory breach reporting in NSW and privacy champions network in Queensland, to the focus on managing privacy in complex cross-cultural contexts in the Northern Territory.

Overseas, New Zealand is looking at improvements within its public sector, the Philippines will be launching a privacy mark and  Singapore is implementing its new data protection law.

Many of the regulators on Tuesday also expressed the view that it is time for everyday Australians to make privacy a priority and realise that every time we hand over our data, we’re not only making an individual decision but also contributing to the future fabric of our society.

3. Privacy spat!

What better way to draw attention to trust and transparency during PAW than a stoush between two technology platforms over privacy.

Signal and Facebook went at it after Signal used Facebook’s own advertising platform to create ads that exposed the categories Facebook uses to classify users. The ads appeared as placards and contained customised messages such as: “You got this ad because you’re a certified public accountant in an open relationship. This ad used your location to see you’re in South Atlanta. You’re into natural skin care and you’ve supported Cardi B since day one.”

Facebook labelled the move a stunt, while Signal claimed Facebook disabled its account as a response. Either way, fantastic timing for PAW.

4. Privacy is precious

Speaking of ads, our attention this week was drawn to New Zealand’s TV commercial for privacy, created to raise awareness of its new Privacy Act, which came into operation in December 2020. The ads feature the theme “Privacy is precious” and are at once simple to understand while being wonderfully evocative. Check it out here.

The Kiwis have a great track record of pumping out great videos to raise awareness – see the Air New Zealand air safety videos and New Zealand Government online safety ads. Perhaps it’s time to add “privacy advertisements” to the list of cross-Tasman rivalries, which already includes cricket, rugby and netball. Can Australian creatives take up the charge and create an even better pitch to help the Australian community prioritise privacy?

5. Hurray for privacy drinks

Finally, it was great to celebrate Privacy Awareness Week with an old-fashioned drink with friends and colleagues. elevenM hosted drinks at O Bar in Sydney on Wednesday night, and we were thrilled to be back together in person with so many of our valued friends, clients, partners, colleagues, and other fellow travelers in attendance.

It reminded us what a diverse and vibrant community we have and filled us with inspiration and optimism about the future, as we work together to solve some of the most complex issues of our time. Thanks to all who came, and we hope those that couldn’t will make it next time.

Privacy in focus: Towards a unified privacy regime

In this final post from our ‘Privacy in focus’ blog series we discuss changes we believe are necessary to enhance trust and confidence in the broader privacy landscape in Australia.

Thus far in the ‘Privacy in focus’ series, we have looked at the operation of the Privacy Act and its most fundamental elements: the definition of personal information, the operation of notice and consent, and organisational accountability. We have proposed changes that we believe will strengthen how privacy is managed.

In approaching our final post, we put ourselves in the shoes of the individual. What does the operation of the privacy regime look like to them? Are there gaps? Is there consistency in who is covered and who isn’t? Do they feel empowered to participate in the defence of their rights? In asking these questions, it became clear that there may be some blind-spots and loopholes undermining confidence in the broader system.

Time to close the gaps

A number of exemptions in the Privacy Act – while reasonable at the time of their inclusion – no longer appear valid given the way our economy and online environment functions. Most striking are the exemptions for small businesses and employee records.

Due to technology, small businesses today are capable of great scale, with many handling significant volumes of personal information. Small businesses account for 97% of all Australian businesses (by employee size) and at least a third of the value of the Australian economy. Excluding such a large chunk of the economy from privacy regulation not only places many individuals at risk of potential harm, it erodes trust in our privacy regime, is out of step with international standards and contributes to why we are inadequate under GDPR.

In saying this, many small businesses today already comply with overseas privacy regimes (that do not include a small business exemption) because they also service international customers. Removing the small business exemption may provide many such businesses with consistency and reduce friction in international transactions.

The changing times have also left employee records and political exemptions behind. Due to the convergence of digital experiences inside and outside the workplace, it’s likely many individuals have the same expectations of privacy from their employer as they do of businesses they deal with outside the workplace. The emergence of workplace surveillance technologies also further underscores the need for better protections for employee information.

On the political front, developments such as Cambridge Analytica, growing voter databases and unsolicited campaign messaging have clearly cast a shadow over the validity of exemptions for political parties.

As a final note, the Australian Community Attitudes to Privacy Survey 2020 found almost three-quarters of Australians feel exempt organisations “should be required to protect personal information in the same ways that government and larger businesses are required to”.

Two final strings to the bow

Earlier in the series, we made the case that consumers are not truly empowered to manage their own privacy – largely because the idea that we can make rational decisions about future informational harms, especially in increasingly complex digital ecosystems, is a deeply flawed premise.

This lack of empowerment is even more explicit when things go wrong. Firstly, many privacy wrongs are not covered by the Privacy Act at all. Absent a general ‘privacy tort’ or independent statutory cause of action, individuals lack the ability to take to court serious invasions of privacy that don’t involve the Privacy Act, such as such as unauthorised surveillance or infringements on the privacy of communications.

Even when an infringements is covered by the Act (ie. matters of data protection by organisations), individuals presently have no direct recourse. They must rely on privacy regulators – such as the Office of the Australian Information Commissioner – to act against the violating entity on their behalf.  This makes a resource-strained regulator something of a gatekeeper.

It seems logical that a key part of empowering individuals to protect their privacy would be to give them the right to seek judicial redress when harmed. Tellingly, 78% of Australians believe that they should have the right to seek compensation in the courts for a breach of privacy. Indeed, the need for a statutory cause of action for invasions of privacy has been canvassed previously, including by the Australian Law Reform Commission (ARLC) and The Australian Competition and Consumer Commission’s Digital Platforms Inquiry.

There does need to be careful consideration of how a direct right of action is designed. Much has been written about the deep pockets required to approach the courts, and the counter argument that the courts could be overwhelmed by trivial privacy complaints, to say nothing of the fear of the business community in being dragged into ‘nuisance lawsuits’. Options such as a threshold test and procedural considerations have been contemplated in detail, including by the ARLC in its 2013 issues paper and by elevenM in our direct right of action research paper.

Introducing a direct right of action might also shift sentiment, drawing individuals to think more keenly about their own privacy. A direct right of action also amplifies the idea that privacy is of value in our society, particularly once individuals pursuing actions becomes visible. As argued by US lawyer Yosef Getachew in making the case for a right of action in the US, a direct right of action is “an extension of democratic participation, like petitioning government, writing members of Congress, and talking to state legislators.”

Towards a unified system

As we’ve worked our way through this blog series on the review of the Privacy Act, what has emerged clearly is that the legislation remains is no longer in-step with the modern digital environment, and that reform is necessary.

This includes changes at the level of definitions of terms like personal information. Equally important is understanding whether measures like consent and notice remain effective and durable as digital interactions become more complex. When we consider the roles of individuals and organisations, we also must ask: how do we strike the right balance of accountabilities? Should we reframe where the onus of responsibility sits?

In short, we seek to imagine a more unified system in which all parts – individuals, organisations, regulators and the regulations – work together to deliver a digital environment marked by consistently good privacy and high levels of trust. We’re confident many of these issues will be contemplated seriously by a revised Privacy Act, and hope this series has been a constructive and informative contribution.


Read all posts from the Privacy in focus series:
Privacy in focus: A new beginning
Privacy in focus: Who’s in the room?
Privacy in focus: What’s in a word?
Privacy in focus: The consent catch-22
Privacy in focus: A pub test for privacy
Privacy in focus: Towards a unified privacy regime

Privacy in focus: A pub test for privacy

In this instalment of our ‘Privacy in focus’ blog series, we look beyond consent and explore other ideas that could make privacy easier and more manageable.

In our last post, without mentioning milkshakes, we talked about how central consent has become in the regulation of privacy and how putting so much weight on individuals’ choices can be problematic.

This time, we’re into solution mode. How can we make privacy choices easier? How might we start moving away from consent as the touchstone? What might privacy law look like if it didn’t rely so heavily on individuals to monitor and control how their information is used?

Start where you are

It is likely that notice and consent will always be a critical piece of the privacy puzzle, so before we start talking about evolving our entire regulatory model, we should probably cover what might be done to improve our current approach.

Last time, we identified four related ways in which individual privacy choices get compromised:

  • we don’t have enough time
  • we don’t have enough expertise
  • we behave irrationally
  • we are manipulated by system designers.

So what can we do to address these shortcomings?

We can raise the bar — rule out reliance on consent in circumstances where individuals are rushed, do not understand or have not truly considered their options, or in truth do not have any options at all.[1] Raising the bar would rule out a range of practices that are currently commonplace, such as seeking consent for broad and undefined future uses, or where there is a substantial imbalance of power between the parties (such as in an employment relationship). It would also rule out what is currently a very common practice of digital platforms — requiring consent to unrelated secondary uses of personal information (such as profiling, advertising and sale) as a condition of service or access to the platform.

We can demand better designclearer, shorter and more intelligible privacy communications, perhaps even using standardised language and icons. Apple’s recently adopted privacy ‘nutrition labels’ for iPhone apps are a great example of what this can look like in practice, but we needn’t stop there — there is a whole field of study in legal information design and established practices and regulatory requirements from other industries (such as financial services product disclosures) which could be drawn on.

We can ban specific bad practicesmanipulative and exploitative behaviours that should be prohibited. Australian Consumer Law goes some way to doing this already, for example by prohibiting misleading and deceptive conduct (as the ACCC’s recent victory against Google will attest). But we could go further, for example by following California in specifically prohibiting ‘dark patterns’ — language, visual design, unnecessary steps or other features intended to push users into agreeing to something they wouldn’t otherwise agree to. Another, related option is to require privacy protective default settings to prevent firms from leveraging the default effect to push users towards disclosing more than they would like.

Who should take responsibility for safety?

But even if we did all of the above (and we should), taking responsibility for our own privacy in a world that is built to track our every move is still an impossibly big ask. Instead of expecting individuals to make the right choices to protect themselves from harmful data practices, the Privacy Act should do more to keep people safe and ensure organisations do the right thing.

What would that look like in practice? Focusing on organisational accountability and harm prevention would mean treating privacy a bit more like product safety, or the safety of our built environment. In these contexts, regulatory design is less about how to enable consumer choice and more about identifying who is best equipped to take responsibility for the safety of a thing and how best to motivate that party to do so.

Without strict safety requirements on their products, manufacturers and builders may be incentivised to cut corners or take unnecessary risks. But for the reasons we’ve already discussed, it doesn’t make sense to look to consumers to establish or enforce these kinds of requirements.

Take the safety of a children’s toy, for example. What is more likely to yield the optimal outcome – having experts establish standards for safety and quality (eg: for non-toxic paints and plastics, part size, etc) which manufacturers must meet to access the Australian market, and against which products will be tested by a well-resourced regulator? Or leaving it to the market and having every individual, time-poor consumer assess safety for themselves at the time of purchase, based on their limited knowledge of the product’s inner workings?

Whenever we can identify practices that are dangerous or harmful, it is far more effective and efficient to centralise responsibility in the producer and establish strong, well-funded regulators to set and check safety standards. We don’t expect individual consumers to check for themselves whether the products they buy are safe to use, or whether a building is safe to enter.

Why should privacy be any different?

Just like with buildings or physical goods, we should be able to take a certain level of safety for granted with respect to our privacy. Where a collection, use or disclosure of personal information is clearly and universally harmful, the Privacy Act should prohibit it. It should not fall to the user to identify and avoid or mitigate that harm.

Privacy laws in other jurisdictions do this. Canada, for example, requires any handling of personal information to be ‘for purposes that a reasonable person would consider appropriate in the circumstances. In Europe under the GDPR, personal data must be processed ‘fairly’. Both requirements have the effect of prohibiting or restricting the most harmful uses of personal information.

However, under our current Privacy Act, we have no such protection. There’s nothing in the Privacy Act that would stop, for example, an organisation publishing personal information, including addresses and photos, to facilitate stalking and targeting of individuals (provided they collected the information for that purpose). Similarly, there’s nothing in the Privacy Act that would stop an organisation using personal information to identify and target vulnerable individuals with exploitative content (such as gambling advertising).[2] The APPs do surprisingly little to prohibit unfair or unreasonable use and disclosure of personal information, even where it does not meet community expectations or may cause harm to individuals.

A pub test for privacy

It is past time that changed. We need a pub test for privacy. Or more formally, an overarching requirement that any collection, use or disclosure of personal information must be fair and reasonable in all the circumstances.

For organisations, the burden of this new requirement would be limited. Fairness and reasonableness are well established legal standards, and the kind of analysis required — taking into account the broader circumstances surrounding a practice such as community expectations and any potential for harm — is already routinely conducted in the course of a Privacy Impact Assessment (a standard process used in many organisations to identity and minimise the privacy impacts of projects). Fairness and reasonableness present a low bar, which the vast majority of businesses and business practices clear easily.

But for individuals, stronger baseline protections present real and substantial benefits. A pub test would rule out the most exploitative data practices and provide a basis for trust by shifting some responsibility for avoiding harm onto organisations. This lowers the level of vigilance required to protect against everyday privacy harms — so I don’t need to read a privacy policy to check whether my flashlight app will collect and share my location information, for example. It also helps to build trust in privacy protections themselves by bringing the law closer into line with community expectations — if an act or practice feels wrong, there’s a better chance that it will be.

The ultimate goal

The goal here — of both consent reforms and a pub test — is make privacy easier for everyone. To create a world where individuals don’t need to read the privacy policy or understand how cookies work or navigate complex settings and disclosures just to avoid being tracked. Where we can simply trust that the organisations we’re dealing with aren’t doing anything crazy with our data, just as we can trust that the builders of a skyscraper aren’t doing anything crazy with the foundations. And to create a world where this clearer and globally consistent set of expectations also makes life easier for organisations.

These changes are not revolutionary, and they might not get us to that world immediately, but they are an important step along the path, and similar measures have been effective in driving better practices in other jurisdictions.

The review of the Privacy Act is not only an opportunity to bring us back in line with international best practice, but also an opportunity to make privacy easier and more manageable for us all.


Read all posts from the Privacy in focus series:
Privacy in focus: A new beginning
Privacy in focus: Who’s in the room?
Privacy in focus: What’s in a word?
Privacy in focus: The consent catch-22
Privacy in focus: A pub test for privacy

 


[1] In it’s submission on the issues paper, the OAIC recommends amending the definition of consent to require ‘a clear affirmative act that is freely given, specific, current, unambiguous and informed’.

[2] These examples are drawn from the OAIC’s submission to the Privacy Act Review Issues Paper – see pages 84-88.