Category: Europe

No need to fear a database society?

Peter Bradwell of Demos raises some interesting points in his summary of their new report on people’s attitudes to state databases in the UK, but he also sets up a straw man, and as I am one of the people implicated, I object to this. He argues that there are many positive sides to databases (of course!) and contrasts this with the former Information Commissioner’s statement on ‘sleepwalking into a surveillance society’ as ‘fear-based’. However, the reaction of the ICO was to commission a report in 2006, which I coordinated, to examine the concept of the ‘surveillance society’. This was pretty balanced and stressed the positive aspects of surveillance as much as the negative, indeed it did exactly the kind of assessment that Demos claims it’s doing here. So it’s rather ironic that the author is trying to stop people being afraid of the word ‘database’ yet still promoting the idea that ‘surveillance’ is automatically a bad thing to be feared! However, I would urge rather less optimism. We’re currently writing an update to our 2006 report and it’s pretty clear that in most areas, the UK has gone further, faster, than even we anticipated.

The basic argument of Demos appears to be that if all of this was under some kind of accountable control, then perhaps one might have grounds for optimism. But that’s true of just about almost anything and it’s a rather big ‘if’. What are the developments in the direction of accountability that they have seen which give rise for optimism? There are none in the piece, and the report itself is about what people think about state databases. That is very interesting from a political point of view, but unfortunately doesn’t tell us much about what is actually happening or likely to happen, only what people believe about it. Of actual examples of increasing accountability recently, I can only think of the state’s retreat on RIPA, but that wasn’t particularly profound, and the only other serious changes have come when the British government’s hand has been forced by European Court decisions (on the National DNA Database, for example)… can Demos help me out here with more than just the fact that people don’t think it’s that bad? I will have to read the full report and get back to you…

UK Government to Increase Postal Surveillance

For a long time now, the Royal Mail has been a service that prided itself on confidentiality. Historian, David Vincent, noted in his 1998 book, The Culture of Secrecy in Britain 1832-1998, that one of the first major scandals over surveillance in the modern era was the 1844 scandal when an Italian exile, Joseph Mazzini, who was resident in London, discovered that the British government were secretly opening his mail. The prompted discussion in the House of Commons and outrage that such low ‘foreign’ practices were taking place in Britain.

In reality, of course the mail of targets of intelligence services is opened and read regularly, but in law in the UK, if mail is going to be opened – and this can only be done by HM Revenue & Customs (HMRC) – the recipient has to be notified and present when it is done. Indeed, it’s been one of the characteristic complaints about many different states’ recent attempts to extend so-called ‘lawful access’ provisions to electronic mail and Internet sites by requiring ISPs to retain traffic data and provide it to the state upon request, that this goes far beyond what has ever been done with mail, except in totalitarian societies like the former East Germany, whose Stasi were notorious for opening letters either secretly or in many cases, quite openly.

So, the UK has now, it seems, decided to redress the balance. It will not of course, hold back on the lawful access provisions regarding electronic communications in the Telecommunications Bill. No, of course not. Instead, according to the Guardian this weekend, it is planning what they had probably hoped would be a quiet little amendment to the Postal Services Act, removing any requirement to notify people when their mail is to be opened. I am sure there will be the usual ‘safeguards’ and ‘codes of conduct’, in other words, the voluntary provisions which hae characterised recent British government’s pathetic and limited attempts to provide for privacy and other civil rights. But essentially, this is the end of any generalised assumption of confidentiality of the mail in Britain. It runs contrary to the European Convention on Human Rights (and therefore the UK Human Rights Act too). Every time you think there is no way the government could get any more repressive and get away with it, they do – will it be different this time?

UK Parliamentary Committee rejects Government DNA proposals

The House of Commons Home Affairs Select Committee has rejected a key part of the UK government’s new plans for the National DNA Database (NDNAD). The plans came in response to the ruling by the European Court that the NDNAD was being operated contrary to human rights law by keeping the profiles of innocent people indefinitely. The database has been filled largely through the provisions of a very vague and wide-ranging provision that allowed the police to take DNA from anyone arrested for an indictable offence, and to keep it even if they were never even charged (let alone charged and not convicted). The result had been that long-standing prejudices within the police had meant a bias in the databases against young black men, and a rapidly expanding set of profiles of children and the entirely innocent.The NDNAD had also been attacked by the HUman Genetics Commission (the government’s own watchdog) which recommended multiple reforms.

One of the main parts of the government’s response to the European Court ruling was that DNA should be retained for 6 years – the committee has recommended that this be halved to 3 years (we are still talking about the DNA of innocent people here…), and that there should be some proper national system for deciding who gets deleted entirely (at the moment it is at the discretion of Chief Constables of local police forces!). Of course all of these leaves the wider question of fairness and rights undebated. There are only two properly just ways to run a database of this sort. One would be to include only the DNA of those convicted of a crime or suspected in an ongoing investigation. The other would be to include everyone (as the UAE has decided to do). At the moment, the NDNAD is, like most things in Britain, an unaccountable mess of law, customary practice and happenstance that pleases no-one and is also remarkably ineffective for the money and effort put into it. This will only improve slightly even if the select committee’s recommendations are accepted.

German Constitutional Court shoots down new ‘Lawful Access’ Provisions

Germany’s Constitutional Court is one of the few such national institutions that has been brave enough to interpret the right to privacy as actually meaning something that might outweight the state’s desire to know. According to the BBC, in a really strong decision, it has just ruled that a 2008 law, requiring all telecommunications traffic data to be stored for 6 months, violated privacy rights of citizens and should be struck out. Germany had already threatened to veto the European Union’s Telecommunications Directive 2006/24/EC (which came into force last year), a move which prompted the Council of Minister to take the unethical and devious step of redefining the Directive as belonging to the ‘commercial’ field (which requires only majority vote) as opposed to being a matter of ‘security’ (in which there has to be unanimity). We will now see what is the reaction of the German government to their own law being declared unconstitutional, and indeed, what international reverberations this have – the USA will certainly not like this.

(Thanks to ‘Unkraut’ for the pointer)

SSN to do new Surveillance Society report for ICO

The same team that did the influential Report on the Surveillance Society for the UK Information Commissioner’s Office (ICO) back in 2006 will be doing a follow-up report on the state of surveillance in the UK for the ICO and the national Parliament this year. Many of the things discussed in that report, which I coordinated, have been accelerating and intensifying, most obviously things like airport body-scanning and the use of drone surveillance cameras, but other things have stalled or slowed, for example the implementation of the ID card regime and more widespread use of RFID tags outside of inventory systems. We’ll be assessing the state of play and making some recommendations as a result. The project this time will be led by Professor Charles Raab in Political Science at Edinburgh University, and one of the world’s leading experts on privacy regulation, and will also include Dr Kirstie Ball of the Open University Business School, Professor Clive Norris of the Centre for Criminological Research at Sheffield, Professor Steve Graham from the Global Urban Research Unit (my old place) at Newcastle University – all in the UK – as well as myself and Professor David Lyon here at the Surveillance Studies Centre at Queen’s University, in Ontario. It will be great to be back working with the whole team again, and I hope we can contribute to a more focused debate and some real changes to UK policy and practice. We shall see…

Arrests for taking pictures continue in the UK

Despite repeated government and police assurances that it would not be happening any more, ordinary people are still being arrested for taking pictures in the UK, under the pernicious terms of Section 44 of the Terrorism Act, and not just in London. This time, a photographer video camera user managed to film the process of his arrest. There particularly ridiculous aspects of this case are firstly that the officer, when challenged on his assertion that this was a terrorism-related offence, changed her charge to that of anti-social behaviour (which isn’t a crime as such, anyway), and secondly that the first officer was not even a proper police officer, but a Police Community Support Officer (PCSO) AKA ‘plastic police’. PCSOs do not have the training or powers of the regular police but they are increasingly acting as if they do, and since they look almost identical to the untrained eye, they frequently get away with it. They shouldn’t: PCSOs need to be more clearly trained as to the legal and moral limitations of their role.

The second time he was stopped, it was by a police officer who had been informed by the PCSO, however the police officer too was unable to give reasons as to why they wanted the details of the photographer. They seemed to think that just because the officer was suspicious that was enough, whereas in law they must have a ‘reasonable’ suspicion. There were no such grounds. The officer refused to give reasonable grounds other than the fact they were taking pictures and refused to say whether they were being arrested. So they left, but they were later arrested by another officer for ‘anti-social behaviour’ (which is not a crime, and certainly taking pictures is not inherently ‘anti-social’ – or if it was, then the state’s CCTV systems would be equally ‘anti-social’). This seemed to have nothing more than a matter of the officers being annoyed by the fact that they challenged the officers. The police need to remember that they serve the public and are not there to tell the public what to do when they are doing nothing unlawful.

European Parliament blocks EU-US data-sharing agreement

In a rare burst of sanity and concern for the rights of EU citizens, the European Parliament has exercised one of its very limited range of powers and blocked an agreement to continue the ability of the US government to access the Swift international bank transfer system. The parliament argued that the agreement, the descendent of a secret arrangement discovered in 2006, which came about in the aftermath of 9/11, paid insufficient attention to privacy. They are right. It doesn’t pay any attention to the safeguarding of citizens’ information rights, it merely confirms the terms of the undemocratic original agreement, one of a surge of such arrangements that were rushed through in the wake of the attacks when no-one was likely to pay much attention to things like human rights. Now, however, in an slightly less charged atmosphere, the Parliament has been able to demand that such rights should be respected in any transparent and accountable agreement. No-one is arguing that data should not be shared where there is a case for it to be shared, but this should not be at the expense of the rights and freedoms of which we are supposedly exemplars.

Wonky deployment of UK ID cards continues

The strange progress of the roll-out of the UK’s National ID card scheme continues, ably tracked by The Register, with the latest wheeze being to target young people whose passports have expired with the promise that the ID card will help them to buy cigarettes and alcohol (which, of course, are otherwise considered as major social problems by New Labour…). However the ID cards don’t seem to be working as promised in many cases – for example, it was revealed a few days ago that many travel companies were refusing to accept the new cards in place of passports as they were supposed to. Of course, time may be running out for the scheme in any case with national elections due by the end of May…

UK’s secret national flying camera strategy

If there was any doubt left, it seems the British government has finally given up all pretense of trying to balance civil liberties and security. A plan has been revealed by The Guardian newspaper for a national strategy for surveillance by Unmanned Aerial Vehicles (UAVs). And we are not just talking the micro-helicopter UAVs used by many UK police forces already, but 22m-long airships, the G22, which can stay airborne for many hours. The military drones will require special certification for civilian use.

And of course, these devices are supposed to be in place for the 2012 Olympics, but even in the documentation secured under the Freedom of Information Act (FoIA), it is made very clear that the drones will be used for a multiplicity of ‘routine’ operations, including from orders and fisheries activity to conventional policing and even “[detecting] theft from cash machines, preventing theft of tractors and monitoring antisocial driving… event security and covert urban surveillance” as well as all the kinds of activities that the already controversial Regulation of Investigatory Powers Act (RIPA) covers, including “fly-posting, fly-tipping, abandoned vehicles, abnormal loads, waste management”.

If this wasn’t bad enough, the whole thing has been developed in secret with the British governments favourite arms manufacturer, BAe Sytems, is projected to run as a public-private partnership due to the massive expense, and it has even been suggested that the surveillance data could be sold to private companies, according to The Guardian.

And the ‘selling’ of this to the public has already begun. Some suggestions of the use of high-flying drones had been made by Kent police, who had claimed it would be to “monitor shipping and detect immigrants crossing from France”. However, as The Guardian goes on to show this was a ruse which was part of long-term PR strategy to divert attention away from civil liberties issues. One 2007 document apparently states, “There is potential for these [maritime] uses to be projected as a ‘good news’ story to the public rather than more ‘big brother’.”

It’s really hard to say anything polite about these plans, the way they have been developed, and the complete lack of interest in or concern for the British public’s very real and growing fear of a surveillance state in the UK.

A footnote: almost as soon as this news was revealed, the British government raised the terrorist threat level to ‘severe’, without providing any indication that was any specific threat. Now, this may be entirely coincidental (and there are a couple of high-level meetings on Yemen and Afghanistan strategy in London next week), but if the threat level was much higher, the British public might suddenly be more amenable to the introduction of something to protect them from this ‘severe’ threat, like, say, flying drone cameras, don’t you think?

What now for the UK’s anti-terrorism laws?

On the 12th of January, the European Court of Human Rights (ECHR) ruled in the case of Gillan and Quinton v. the United Kingdom, that UK police powers to randomly stop and search people under Sections 44-47 of The Terrorism Act (2000) were unlawful. This is the third recent ruling by the ECHR against the current direction of the UK’s security policies (after the ruling in S. and Marper v. the UK, against the police retaining DNA profiles and fingerprints from people not convicted of any offence). It also follows the furore over the London Metropolitan Police’s interpretation of Sections 43, 44 and 58s of The Terrorism Act in relation to public photography.* The case was brought by two people, Pennie Quinton a journalist who was on her way to cover a demonstration against an arms fair in London in September 2003,, and Kevin Gillan, who was cycling past.

Section 44 allows the police to stop and search anyone on the basis of a ‘reasonable suspicion’ that they may be in posssession of information or items that may be useful in committing an act of terrorism. The case in the ECHR was on several principles, most of which were rejected, but most importantly the Court found that arbitrary stop and search dis violate Article 8 of the European Convention, on the right to privacy. This was because “the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life”.

Furthermore the UK government once again argued, as it did equally unsuccessfully in the case of Peck v. UK back in 2003, that Article 8 did not apply as there was no right privacy in public places. This argument, the Court not only rejected but actually argued that the publicness of the stop and search made the violation of privacy worse:

“Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court’s view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”

This was a well-thought out ruling which made the arguments pretty clear. However the response of the UK government, as in the DNA case, leaves a lot to be desired. In fact, it has basically said, “make me”! The government intends to ignore the ruling in everyday practice, as it did with Peck, and will continue to allow police to carry out such searches whilst it appeals the case. This also means that there will be no disciplinary action against any officer who follows this policy, despite its now being unlawful.

*This of course is by no means over either, and there will be a mass photography action, “I’m a Photographer Not a Terrorist!”, on January 23rd at 12 Noon, Trafalgar Square in London.