Guardian article

The Guardian‘s Comment is Free site published a short version of my critiques of RIPA today… you can read it here.

Or the full version prior to editing is here:

A little-known tribunal is meeting this week to consider a case a case of wrongful surveillance. The case brought by Jenny Paton and Tim Joyce against Poole District Council in the Regulation of Investigatory Powers Tribunal concerns the local authority’s targeted surveillance measures against the couple and their children in an investigation of their application for school places. Among other activities, council employees trailed the family and interrogated neighbours.

The case comes in the same week that the government issued its response to a consultation process on the reform of the law which the tribunal oversees: the Regulation of Investigatory Powers Act (RIPA) (2000). RIPA has proved controversial as it seems to give many different public bodies new powers of surveillance, but that isn’t entirely true: as many local council officials admit, much of this was going on before 2000, but RIPA regulates and restricts it – in fact, it restricts it too much to some of the published responses to the consultation process. It is, however, almost impossible to determine whether RIPA has increased or decreased surveillance of this kind as no consistent records were kept prior to RIPA’s introduction. What is certainly the case is that the public is now more aware of the use of surveillance powers by agencies they had never realized were allowed to do such things.

Surveys have found that only 9% of RIPA authorizations resulted in either prosecution of enforcement action. In Australia, earlier this year, when only 28% of the use of targeted surveillance (in that case by police) resulted in prosecutions, their law was denounced as an excuse for ‘fishing expeditions.’ So what does a 9% rate indicate for Britain? Desperation perhaps? Or at least that RIPA was being massively overused for trivial issues. The House of Lords Constitution Committee report, Surveillance: Citizens and the State, certainly thought so, arguing not only that the inadequate administrative procedures should be reviewed but also that the government should think again about the whole business of allowing Local Authorities police powers, and that in any case, these powers “should only be available for the investigation of serious criminal offences which would attract a custodial sentence of at least two years.”

The government has failed to take heed of these recommendations. Ok, so they have agreed to restrict the authorization of covert surveillance under RIPA to ‘Director, Head of Service, Service Manager or equivalent’, and that Local Authorities should designate compliance officers so there will be no more junior officers deciding to play James Bond, as in the Poole case. However, by going to a ‘consultation’ whose respondents were dominated by Local Authorities and other RIPA-enabled agencies, they have managed to avoid doing anything particularly radical. This started from limiting the scope of the review through the questions they asked in the consultation.

For example, by asking which covert investigatory techniques specifically should be removed (and discounting any views that said ‘all of them’) they managed to get a mixed set of answers that failed to produced a clear vote against any one technique. Result: no techniques get removed and in fact some of the existing allowed techniques get extended to yet more agencies, for example the new Child Maintenance and Enforcement Commission (the replacement for the Child Support Agency). In particular, this extension of powers covers telecommunications data, whose keeping by the state has of course increased since RIPA was proposed. Now RIPA will be used to allow new bodies access to this data.

A curious note throughout the response by the government is the insistence on using an idea of non-interference with law-enforcement as a reason for not allowing elected officials any more than strategic scrutiny over the actions their own officials take under RIPA. This matters because RIPA is just one of many ways in which law-enforcement is not spreading as a function to increasing numbers of agencies beyond the police and judiciary. This seems to be general position that New Labour has taken – although it hasn’t always got its way – does anyone remember the dropped proposals to allow any ‘responsible people’ to levy on the spot fines?

And the government response seems to take a bullish delight in attacking those who have criticized the surveillance society. They insist, for example – and despite all the evidence to suggest that such interventions have limited effectiveness – that Local Authorities should make more use of overt, mass surveillance, like CCTV, instead of using RIPA. They are creating a binary choice, which seems to say assume that some kind of surveillance should be used: which do you choose, overt or covert? But, of course, that shouldn’t be the choice at all. They are also trying to have their cake and eat it on CCTV: the response to the consultation dismisses those consultees who brought up the subject of CCTV – which is not covered by RIPA – but feel quite able themselves to recommend its extended use in their own response. This of course also ignores the perfectly legitimate feeling amongst many that it is about CCTV was brought under proper control and a reformed RIPA might well be the place to do it.

Then there are things missing: notably, the concentration on Local Authorities, which for the most part has completely obscured the use of covert surveillance by central government departments and arms-length agencies including the Department for Environment, Food and Rural Affairs (Defra), the NHS and the Environment Agency, all of which have been criticized in the past by the Surveillance Commissioner.  Nothing seems to be proposed to increase the visibility of the RIPA Tribunal which is, just for now, in the news. The Lords described it as all but invisible and weak. Nor do the government propose to do anything to strengthen training or the Code of Practice, and in any case, there has been a huge over reliance on such self-regulation for matters which should have more formal control; this is also how CCTV and the security industry is largely – and incredibly ineffectively – regulated in the UK.

Pretty much anyone could have predicted this limp response from the Home Office to some rather serious problems. They don’t read their own research, they don’t do consultation in a meaningful manner, and then, surprise, surprise, they conclude that there really isn’t very much wrong after all. Jenny Paton and Tim Joyce may well disagree, and let us hope that the RIPA Tribunal do too.

Author: David

I'm David Murakami Wood. I live on Wolfe Island, in Ontario, and am Canada Research Chair (Tier II) in Surveillance Studies and an Associate Professor at Queen's University, Kingston. View all posts by David