policy – Page 4

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.

RIPA to be limited

The UK Home Office is finally publishing plans to reform the Regulation of Investigatory Powers Act (RIPA) which defined in law the surveillance powers open to hundreds of government bodies. You can see what I have previously said about the consultation here. The consultation on RIPA actually had 7 major questions. The Home Office has now responded to all the opinions offered during the consultation. In more detail, this is what was said:

1. Taking into account the reasons for requiring the use of covert investigatory techniques under RIPA set out for each public authority, should any of them nevertheless be removed from the RIPA framework?

Response: basically, none should be removed. Although the Home Office noted that many respondents had objections, they didn’t feel they added up. Indeed this section also seems to include extensions of the powers (or clarifications that act effectively as extensions) for example the ability of the Child Maintenance and Enforcement Commission (the replacement for the Child Support Agency), to have access to telecommunications data to investigate fathers required to pay child support. These extensions may be warranted or not, but they show the tendency for what Gary Marx long ago called ‘surveillance creep’ to occur – the saving of telecommunications data has increased since RIPA was proposed and now RIPA will be used to allow new agencies access to this data.

They also note that they will not be returning any of these investigatory functions to the police. This is interesting because later they use the reason of non-interference in law-enforcement for denying elected councillors detailed oversight. So this confirms a trend to less and less accountable law enforcement.

2. If any public authorities should be removed from the RIPA framework, what, if any, alternative tools should they be given to enable them to do their jobs?

Response: given the previous response, it is not surprising that no real change is proposed here. The Home Office in fact insists that more emphasis should be placed on overt surveillance by local authorities (like CCTV) in order to reduce the need to resort to RIPA’s covert surveillance!

3. What more should we do to reduce bureaucracy for the police so they can use RIPA more easily to protect the public against criminals?

This wasn’t a question that I ever noticed critics of RIPA asking. Some agencies seem to have objected to the amount of paperwork around RIPA and The Home Office “agrees that it is in no-one’s interests for documentation to be unnecessarily time-consuming” and they, for once, insist on a proper auditable trail that can help protect privacy. They say in any case, applications are already down massively.

There is an interesting note that suggests the increasing use of RIPA for counter-terrorism activities which is left rather open – “the Government is facilitating the work of police collaborative units, such as the regional counter-terrorist units… This means officers seeking to use techniques under RIPA will be able to apply to authorising officers in different forces, where the Chief Officers have made a collaboration agreement that permits this”, in other words that RIPA might be used for massive, blanket undercover surveillance operations. Now that certain wasn’t what the government has recently claimed it was intended for – although of course, as anyone with any kind of memory will recall, it was exactly the justification used for passing it.

4. Should the rank at which local authorities authorise the use of covert investigatory techniques be raised to senior executive?

Response: The media reports thus far have focused on the plan to limit the authorisation of such practices to council chief executives and directors – a recommendation made by the House of Lords Constitution Committee – what the Home Office actually recommends is to restrict the decision to a rather wider set: ‘Director, Head of Service, Service Manager or equivalent’. So, no junior officers any more, which is good, but not necessarily senior managers only. They also recommend having a compliance officer designated, which is good if they genuinely work on active and ethical compliance rather than thinking of excuses in retrospect.

5. Should elected councillors be given a role in overseeing the way local authorities use covert investigatory techniques?

Response: yes they should, but it should be ‘strategic’ and limited to once a year setting of policy and strategy with quarterly oversight meetings. They argue, as I mentioned earlier, that non-interference in law-enforcement is a good reason for keeping elected officials away from the details… Councillors in the UK have been increasingly hamstrung in the way that they can oversee their supposed bureaucracy, even to the point where they have been fined and suspended for criticising their own officers. Some real control would be welcome (after all, that is what the purpose of local democracy should be).

6. Are the Government’s other proposed changes in the Consolidating Orders appropriate?

Response: the Home Office basically rejected all the respondents’ comments on the proposals.

7. Do the revised Codes of Practice provide sufficient clarity on when it is necessary and proportionate to use techniques regulated in RIPA?

Response: the codes of practice will be made clearer. No more guidance will be given. The Guardian says that the proposals will ‘ban’ the use of RIPA for ‘minor matters’ but I can’t really see that they do this, and the points of such codes is usually to avoid recourse to the law by encouraging a voluntary self-regulation; it is how CCTV is largely – and incredibly ineffectively – regulated in the UK too.

Big Brother Watch

I’ve just been contacted by a UK organisation calling itself ‘Big Brother Watch’, which claims to be a ‘think-tank’ asking for my help and support. Now the UK already has Liberty, Privacy International, No2ID, No-CCTV, not to mentioned the Surveillance Studies Network, and various other campaigns and organisations, so why this new one? Of course anyone and their dog can call themselves a ‘think-tank’ but Big Brother Watch is being more than a little disingenuous. It is basically a creation of the Taxpayers’ Alliance, which in turn is a fake ‘popular’ pressure group, and a front for neoliberal economic think-tanks like the Adam Smith Institute, various large industrial interests and the most free-market wing of the Conservative Party – you can find out more about what they are really about here. Now, if those are your politics, and you are happy with who backs them, then you are most welcome to support this new creation, but they aren’t my politics and I won’t be offering any support for such front organisations.

US Congress debates online data protection

The US House of Representatives will finally get to debate whether online advertising which tracks the browsing habits of users is a violation of privacy and needs to be controlled. A bill introduced by Rep. Rick Boucher of Virginia will be propsing an opt-out regime that gives users information about the uses to which their data will be put, and allows them to refuse to be enroled. At present many such services work entirely unannounced, placing cookies on users’ hard drives and using other tracking and datamining techniques, and without any way in which a user can say ‘no’. Of course, we have yet to see the results of the inveitable industry scare-stories and hard-lobbying on the what will be proposed, let alone pased. But the proposal itself is particularly significant because so far the US has so far always bowed to business interests on online privacy and data protection, and if this bill is pased, it is a sign that what EFF-founder, Howard Rhiengold, long ago called the ‘electronic frontier’ might start to acquire a little more law and order in favour of ordinary people.

Rio gets the Olympics – and now the poor will suffer

Most people will probably have heard the announcement that Rio de Janeiro has been awarded the 2016 Olympic Games. While I am pleased that Brazil has beaten the USA in particular in this race in the sense that it shows a slight shift in global power balances towards the global south, I am very concerned as to how the current right-wing administration of both the city and region of Rio will deal with the ‘security’ issues around this mega-event. The Pan-American Games, which Rio hosted in 2007 led to the violent occupation by military police of several particularly troubled favelas (informal settlements), and the new administration has already shown its authoritarian tendencies with the Giuliani- wannabe ‘choque de ordem’ (shock of order) policies that involve building demolition, crackdowns on illegal street vendors (i.e. the poor) and more recently, the building of walls around certain favelas, and most recently the unwelcome imposition of CCTV cameras on favelas that were just starting to enjoy improvements in trust between police and community. The favelas that line the main highways into the city from the international airport were already slated for such ghettoization, and the Olympics will only make this more likely to happen and more quickly – just as has happened in South Africa, similarly afflicted by race and class-based social conflict, during the various international meetings and summits there in recent years. Foreign delegates and tourists don’t like to see all that nasty poverty, do they?

I will write more on this later (I am on the road right now…).

Gordon Brown stalls on UK ID cards issue

Despite the news stories saying that he had made a significant announcement on ID cards, the British Prime Minister, Gordon Brown, said absolutely nothing new interesting on the subject in his speech on future Labour policy yesterday. As Henry Porter comments on The Guardian website, whilst his announcement that ID cards would not be compulsory in the (increasingly unlikely) event of another Labour term was greeted with enthusiasm by the party faithful, this is not any kind of change in policy and nothing concrete was said about the National Identity Register (i.e.: the database, the important bit!). While the Conservative Party may be limited and rather disingenuous in their apparent opposition to the ‘surveillance state’, Labour appears to be merely self-congratulatory and complacent.

Surveillance cameras in the favelas…

Well, my fears have it seems, been vindicated already. Earlier this year, as part of my case-study on surveillance in Brazil, I visited the community of Santa Marta, a favela (informal settlement) in Rio de Janeiro. Santa Marta is interesting because of the amount of investment and effort that has been expended in occupying, pacifying and developing the place, by the new gubernatorial administration of Eduardo Paes, who has simultaneously cancelled Favela Bairro, the widely praised and more extensive favela development programs of his predecessor, Cesar Maia.

Leading the new Community Police efforts in Santa Marta was Capitao Pricilla, an indomitable and well-liked young female officer of the Military Police, one of several rising female officers with a new approach, and we heard from residents how trust was being rebuilt between police and community because of her. At the same time, there were storm clouds on the horizon as the city administration was insistent on cracking down still further with its policies of choque de ordem (the shock of order), which involved harassing illegal street vendors from the favelas, and demolishing illegally-built buildings, and also building walls along the edges of some favelas. The word ‘ghetto’ was mentioned on more than one occasion by our interviewees and in more casual conversations.

Now, just last month, the Military Police have decided to install seven CCTV cameras in Santa Marta, in different areas of the community. This has prompted complaints of invasion of privacy, an there have already, my sources report, been protests about this in he favela, but it seems that this is coming from further up the chain of command than Capitao Pricilla and the community police. She isn’t mentioned at all by the article in O Globo, despite being a bit of a PR star, and instead the justification for the cameras is given by one Coronel José Carvalho, who also stated that there are plans to put cameras into the other two areas currently being targeted for development, the famous Cidade de Deus, and the much less well-known and more distant favela of Batan. This also contradicts what I was being told by the Commnder of the police central CCTV control room we visited, which is quoted as being one of the places where the cameras will be monitored. What is interesting is the cameras seem to be being treated by police almost as a tool of urban warfare: a Major Orderlei Santos talks about their experimental use for determine the deployment of officers in the favela.

Could the old macho, male, approach to policing as a war on the poor be trumping the new trust being developed by community policing? I hope not, but everything points that way.

(thanks once again to Paola and David for keeping me in touch…)

UK opposition plans to roll back ‘the surveillance state’

The Conservative Party Shadow Justice Minister, Dominic Grieve has launched a brief report outlining the opposition’s plans to introduce a new attitude to surveillance in the UK, and reverse many of the current Labour government’s policies. And it is mostly good, insofar as it goes. But, it is where it doesn’t go that is the problem.

The main measures include things we already knew, like a pledge to scrap the National Identity Register (NIR) and ID card scheme, and proposals to limit the proliferation of central databases and control the National DNA Database (NDNAD). However the Tories also want to abolish the Contact Point children’s database, restrict Local Government’s rights under the Regulation of Investigatory Powers Act (RIPA), strengthen the powers and functions of the Information Commissioner’s Office (ICO) and require mandatory Privacy Impact Assessment (PIA) for all new legislation or other state proposals.

So far so good – and these are all things I have proposed myself at various times – but there are also some very weak or pointless elements. First of all, the attitude to the private sector is predictably laissez-faire. Though the report includes a long list of the data losses that plagued the Labour government over the last few years, they fail to note how many of them involved private sector contractors or partners. And their only real mention of the private sector is to suggest that the ICO consults with industry on ‘guidelines’ and the possibility of introducing a ‘kitemark’ (a kind of stamp of approval). These are both pretty much worthless and tokenistic efforts. The Tories, as much as Labour, fail to appreciate that contemporary threats to privacy come as much from the private sector as the public. Unfortunately recognising and dealing with this would require a rather more robust attitude to private business than either of the UK’s two main parties are prepared to muster right now. This, I guess, is the reason why the Tories talk about ‘the surveillance state’ as opposed to ‘the surveillance society’ (the term used by ourselves and the ICO).

Secondly, there is no proposal to do anything to control or roll-back the most obvious and intrusive aspect of the UK’s surveillance society, the vast number of CCTV cameras and systems operated by everyone from the police down to housing associations and schools. In fact there is not a single mention of CCTV or public space surveillance in the report. Rather than missing an elephant in the room, this is more like failing to notice a whale in your bathtub…

Finally, there is the suggestion to introduce a right to privacy as part of a ‘British Bill of Rights’. Certainly what privacy means in British law needs to be clarified and strengthened, but actually this could be done through amending the existing Human Rights Act to make it better reflect the European Court’s already published views on the interpretation of Article 8 of the European Directive. Unfortunately, the Tories are stupidly ideologically opposed to doing anything to strengthen the HRA, and in fact their proposed ‘British Bill of Rights’ is a rag-bag collection of populist proposals that will instead replace the most progressive change to British law for some decades.

Finally, there is no mention of any changes to the pernicious Terrorism Act or Counter-Terrorism Act, that have further undermined the presumption of innocence and other longstanding foundations of British citizenship. There’s no mention of previous legislation that restricted traditional freedoms like the Criminal Justice and Public Order Act. In fact, there’s every reason to believe that the Conservative Party will be just as willing to clamp down on such freedoms in the name of the war on terror, or crime, or anti-social behaviour as the Labour Party, and no reason to suppose that they deal honestly with the underlying issues – which would mean, of course, telling people things that they don’t want to hear.

The full report can be found here.

UK ID cards to be abolished?

(Ironically, my last post in the UK, a couple of weeks ago was about Canada, and my first here in Canada will be about the UK…)

The Guardian newspaper’s headline today seems to indicate that the UK government is considering scrapping the controversial National Identity Register and card program, along with the Trident nuclear submarine upgrade. This is based on a speech that the increasingly influential Chancellor of the Exchequer, Peter Mandelson, gave to the centrist Progress think-tank. However, reading the whole article, it is much less clear that any such radical move will take place. Mandelson hedges his bets and says when asked about cost savings from the mooted cancellations:

“I have seen some rather different figures relating to the savings that would arise from cancelling those projects which don’t make the contributions that some people imagine.”

But at the same time, he said “it would be foolish to rule out anything.”

He’s right in many ways. Contracts have been signed. Money has been committed and legal costs could be very high if the government tries to wiggle out of those contracts now. As David Lyon’s new book on ID makes it very clear, ID cards schemes are a global industry with powerful corporate forces involved.

In any case, the real reason the scheme should be scrapped or significantly reduced in ambition, is because it is based on flawed premises and is massively intrusive and controlling. The fact that it also costs a ridiculous amount of money (and will of course, escalate in costs still further, as every state computer project inevitably does), is simply a contingent factor.

Kabukicho Renaissance?

Kabukicho is a place that is hard to love. A seedy, crime-infested dive full of ‘massage parlours’, ‘aesthetic salons’, ‘image bars’ and other thinly-disguised forms of brothel. Tokyo has had red-light disticts since the Edo period, of course, and the Yoshiwara was only the most famous. Shinjuku was always one of them, and since the failure of the threatre initiative that gave the neighbourhood its name, Kabukicho has been the best known. Kabukicho is interesting though for many reasons. It had a radical political and cultural history in the 60s and 70s. It was the epicentre of changes that occurred in organised crime in the 80s and 90s, with Chinese gangs replacing the Yakuza as the biggest ‘threat’. And it is now the centre of efforts by the Shinjuku authorities to clean up its image, with the Kabukicho Renaissance policy, and the new Town Manager, and by Tokyo police to crack down on illegal immigration.