Technology
are unaware of the fact that their solutions could bring a school in breach of the DPA, while others are so big and powerful that a school would fi nd it almost impossible to exert the necessary bargaining power upon them to amend the contract so as to make it comply with the DPA. So, what exactly are the data protection implications of buying cloud
services?
Location of the data Firstly, the DPA says that you cannot ship personal data outside the European Economic Area (EEA) without jumping through complex legal hoops. So if a school in Sussex puts its pupil database into the cloud and the CSP stores that data in New York, the school could be breaching the Data Protection Act. But many CSP’s will not guarantee to keep school data in the UK or EEA but instead will transfer it anywhere in the world to wherever there is capacity to be had – indeed this is where many of the cost savings can be generated. Also, some CSP’s think that they do not have to comply with European data protection laws if the personal data is not going to be held physically within the EEA. This is simply not true. If your preferred CSP contract guarantees that the school’s data will remain in the UK or EEA then this data protection rule will not be breached. If it does not, seek legal advice before signing.
Obligation to keep data safe and secure When a school puts its personal data into the cloud, the DPA requires the school to ensure that technical and organisational steps are taken to keep it safe and secure. This critical legal obligation (known as principle 7) rests on the school’s shoulders and not the CSP’s. Any breach of principle 7, especially involving children’s data, will undoubtedly attract unwanted attention from the media and the data protection regulator. The DPA also requires the school to choose a CSP that is capable of offering suffi cient data security guarantees and then to ensure that the CSP is sticking to those guarantees. This implies pre-contract audits and on-going due diligence inspections. A further formal requirement is that there should be a Data Processor Agreement in place between the school and the CSP. This is a written contract that imposes security obligations upon the CSP which are equivalent to those imposed on the school by
the DPA. This contract must stipulate that the CSP must act only on the instructions of the school. The problem here is that while it is the school that is legally liable to keep the data secure, it is the CSP that usually decides what security and service standards will apply. Infact most CSP’s will present their services on a “take it or leave it”
basis and the school may not have the bargaining power to persuade them to include such strong security guarantees in the contract because of the liability and cost implications for the CSP. Yet without them the school is in breach of the DPA. So, schools need to check very carefully what security standards are adhered to by the CSP. For many schools, the
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