CNET’s ‘Technically Incorrect’ blog leads me to a rather disturbing story in the Chicago Tribune last week about a ruling from a court in Wisconsin, USA. The judges in the appeal court decided that police use of covert GPS tracking devices is equivalent to the naked eye and therefore is not covered by US constitutional prohibitions (in the 4th amendment) on search and seizure. Whilst the local representative claimed that “GPS tracking is an effective means of protecting public safety”, ACLU argued that in fact this is an unwarranted extension of surveillance powers: “the idea that you can go and attach anything you want to somebody else’s property without any court supervision, that’s wrong.”
Now the case itself involved a man suspected of stalking, itself a form of surveillance and not something anyone would want to encourage or defend, however, once again, ends do not justify the means, particularly when the implications of the use of such means are so profound. The ruling illustrates the widespread inability of judges (and lawmakers more broadly) to deal effectively the way in which new technologies change the game or perhaps the inability of constitutional protections to protect effectively in an age of vastly improved technologies of visibility.
In fact the judges in this case themselves expressed some disquiet about their ruling. I can sympathise with them – it is far from obvious how to interpret new surveillance technologies with the constition and laws available. One would think, after the wiretapping cases of the 60s and 70s in the USA, that this lesson might have been learned, but it seems courts will continue to take terms like ‘inside’ and ‘outside’ literally – as perhaps they must. But surely if a device is attached to the ‘outside’ of a car or a house, or indeed is not attached at all and is remote, it does not automatically follow that the information that the device collects is not intimate and personal, and indeed not the same as what could only have been obtained in previous decades by direct human intrusion? For example, a device that can effectively ‘see through walls’ is not the same as the naked eye – it is the equivalent of a police officer being inside the house. Whether this applies to a GPS tracker on a car (whether it is really any more or less than an officer sitting outside the house, or following the vehicle) is a moot point – there will be more and more of these cases, as police test the technological limits of the law, and it seems that most countries, not just the USA, still lack the professional (as opposed to the academic) legal thinking to deal with them.
Larry Elliot, the Guardian’s main economics reporter, has written a great piece today which pretty much sums up what I and other surveillance studies scholars, as well as people writers like Hardt and Negri, Zygmunt Bauman and Naomi Klein, have been saying about the direction of global policy, but particularly in the UK, in recent years. In short, it argues that the current government has completely abandoned the main principles of a liberal democracy, which were to control the market for the common good, and instead has reversed the equation, and now, largely through surveillance, seeks to control people for the benefit of the market. Although this is hardly a new argument, Elliot’s piece is particularly succinct and clear. Worth a read…
As if the govenrment wasn’t in enough of a bind over the police National DNA databases, in a landmark ruling yesterday, the High Court of England and Wales has decided that the DNA of the innocent should not be on the database in the current legal circumstances. The man from County Durham was maliciously accused of assaulting a pupil at the school at which he was a teacher, and despite volunteering for questioning was arrested, fingerprinted and swabbed. These records were of course kept despite his innocence.
This story reminds us that being on the NDNAD is not an isolated thing, but part of a complex network of records that do imply suspicion (like it or not) – even Sir Alec Jeffreys, who pioneered DNA fingerprinting, thinks so… in the case of this teacher, he would have been wrongly suspected every time he applied for jobs working with children.
This is another indication that the government’s policy on the DNA database and police tactics to populate it, have been not just morally questionable but illegal, and confirms that the response issued this week was inadequate and devious. It will be interesting to see how they might now immediately have to modify their plans to conform to this new ruling (which, being a British court, they can hardly blame on ‘un-British’ European law)…
The government’s official response to the damning ruling by the European Court over the retention of DNA and fingerprint samples and data is a farce, which seems utterly contemptuous of the ruling and reasoning of the court, shows no sign of understanding the significance of Article 8 or the British common law principle of innocent until proven guilty.
One thing that has struck me recently in the UK has been the sudden increase in the level of defensiveness by New Labour over the surveillance apparatus it has constructed over the last 12 years. Report after report has damned their slapdash attitude to human rights and civil liberties – we expect the government’s official response to the Lords Constitution Committee report next week – and there have been attacks from various political ‘big beasts’ including David Blunkett, former MI5 Chief Stella Rimington, and most recently Stephen Byers and even current cabinet ministers reportedly asked for the ID card scheme to be scrapped.
However, in the second category, today we got the government’s official responseto the damning ruling by the European Court over the retention of DNA and fingerprint samples and data by the UK police. It is, to put it mildly, a farce, which seems utterly contemptuous of the ruling and reasoning of the court, and shows no sign of understanding the significance of Article 8 for individual liberty. Mind you, it also shows little sign of comprehending the British common law principle of innocent until proven guilty.
The government proposals are to retain the DNA samples and profiles, and fingerprints (these are just as important and not so often mentioned in the news reports) of all those convicted of a crime. Of the innocent, the National DNA Database (NDNAD) has around 350,000+ people who are certainly in such a position, however the police apparently need two years to go through the Police National Computer to check the other 500,000+ DNA profiles of those not convicted of any crime, as they can’t be sure whether existing profiles match to those who have committed offences (so much for joined-up government…). Then those people, who are, let’s not forget, entirely innocent in law will be sorted into two categories – those arrested but not convicted for serious and violent offences, and those arrested and not convicted of minor offences.
Will the latter have their profiles immediately removed, as we might reasonably expect?
Err, no.
In fact, these innocent people will have their DNA profiles and fingerprints retained for 6 years – more than the number of years (5) that Scotland retains the DNA of those suspected of serious and violent offences. Those in the latter category will have their DNA profiles and fingerprints retained for 12 years. In addition the profiles of children will be retained until they are 18, and then removed only if they have been arrested (again, not convicted) for one minor offence.
Is this an acceptable response? Quite clearly not. It is against the spirit of the ruling by the European Court, even if it might be interpreted as complying with the exact wording issued. More to the point, it is an attempt to get around the difficult issues, not deal with them. It is devious, based on the pre-emptive logic of risk-surveillance principles, and goes against the long-standing principles of British Common Law as well as more recent developments in Human Rights law, and is not the response of a government that has any trust in the people who elected them. It allows the police to continue to populate the NDNAD by stealth. And they certainly are using whatever methods they can to do so – for example, one key indicator is the rise in the number of stop and searches under Section 44 of the Terrorism Act, which in London, it was also reported today, rose from 72,000 in 2007 to 170,000 in 2008, a rise of 236%, however it rose by 325% amongst the black population. There seems to be no mention of the role that discriminatory stop and search policing plays in populating the NDNAD in recent government statements, however it is quite clear that stop and search policing is discriminatory, and we know too that young black men are disproportionately represented in the NDNAD.
In this climate, with a government obsessed by pre-emptive security to compensate for its growing loss of power and trust, and a police service that appears, after the G20, increasingly out-of-control, what is the chance of developing a fair, accountable, just and transparent system of personal data retention in law enforcement in the UK? At the moment, it could appear, the answer is ‘very small’.
It has been revealed that the British government has been passing information gathered by the police on citizens to private companies. The Guardian todayshowed that data on climate change protestors found its way from the police to the ridiculously-renamed Department for Business, Enterprise and Regulatory Reform (BERR) to power company, E-ON.
Now, of course the government can argue that electricity supply is a matter of ‘resilience’, ‘contingency planning’ and ‘national security’, but then how can they justify it being in private corporate hands in the first place? How exactly can companies whose primary aim is to provide ‘shareholder value’ at all costs, many of whom are transnationals that have no commitment to the UK, be treated as if they were state organisations, and be given data from state databases? The boundaries between public and private are being increasingly eroded, and once, again it is the relationship between citizen and state which suffers.
The government cannot just give data, especially data which was collected in very questionable ways for highly dubious reasons in the first place, to whoever it thinks might find it useful. This kind of action shows that the the state is now quite often simply the servant of private enterprise, and the police no better than an adjunct to private security. It makes a mockery of regulation of surveillance power and data protection, and does nothing for our already-weakened trust in the state’s ability to protect our rights or or information.
In the latest dispatch in the British state’s ongoing war on photographers (or was that supposed to be terrorists?), a father and son from Austria have been ‘ordered’ by two policemen to delete pictures of bus and tube stations from their digital camera. Klaus and Loris Matzka were told that it was ‘strictly forbidden’ to take such pictures and the police took their personal details including passport numbers and the addresses of the hotel where they were staying.
This is harassment and intimidation, pure and simple. Later The Guardian quotes the Metropolitan Police as sating that they “had no knowledge of any ban on photographing public transport in the capital.” This is a curious way to put it. It is not a question of the police’s knowledge of a ban. There is no ban. The police are well aware of this.
The Met in particular, are currently way out at the edge of their powers and pushing the envelope rather too far, but it seems with relative impunity. As I have written before, they seem to think it is suspicious to be interested in CCTV. It is also apparently suspicious (if not ‘strictly forbidden’) to take pictures of almost anything. But there’s much more. This is also the same force that invaded Parliament mob-handed to arrest Conservative MP, Damien Green, for it now seems, entirely political reasons. This is the same force whose officers have been captured on camera beating protestors – and who may have caused a passer-by to die of a heart-attack. This is the same force that keeps tabs on law-abiding protestors nationwide in case they might break the law, and that provides offices to private organisations running their own intelligence operations (ACPO). And, let us not forget, this is the same force whose incompetent surveillance operation resulted in the shooting of an innocent Brazilian man in the mistaken belief that he was a terrorist.
The Metropolitan Police needs to have a serious lesson in the liberties that they are supposed to be protecting, not restricting. Rather than learning the lessons of inquiry after inquiry, officers (and whether it is more than indvidual officers, one cannot say) appear to be out of control and making de facto policy by intimidation. Surely, this cannot be allowed to continue?
I’ve been looking over the government’s proposals for consultation on the reform on the Regulation of Investigatory Powers Act 2000 (RIPA), officially published on Friday. There’s actually very little that they suggest, apart from some minor and largely voluntary controls on the use of RIPA for trivial purposes by Local Authorities. The Times rang me up and asked me to knock off 500 words (in about an hour!) for a comment on the proposals… which I did… and here it is, unedited*:
Reforming RIPA
Back in the year 2000, opposition was developing to a new piece of legislation, the Regulation of Investigatory Powers Bill. But the controversy over the Bill which became the Regulation of Investigatory Powers Act 2000 (RIPA) was all about provisions to bring electronic communications (e-mail) under the same regulatory regime as telephone and telex, and to demand encryption keys.
What was relatively uncontroversial then were the provision for the regulation of covert surveillance by Local Authorities. Now, councils are accused of abusing the RIPA for trivial purposes, such as dog fouling or littering, or using oppressive or intrusive methods that are not proportional or appropriate to the alleged offences, such as covert monitoring of children to establish where parents involved in an application for school places lived. And much seems to have been inefficient too: a survey of Britain’s 182 Local Authorities found that they have used RIPA surveillance on over 10,000 occasions, yet only 9% resulted in prosecution or enforcement action. But it is not just local government. The Surveillance Commissioner has criticized national ministries like DEFRA and agencies including Ofcom and the Charities Commission over their misuse of RIPA**.
Officials respond that RIPA merely restricts and records what organisations were already doing. Most of the surveillance, they argue, is of the level of two men in a car watching a known fly-tipping site, and that even this requires onerous form-filling – four pages for each request. And even the statistics mislead, because there simply were no statistics on surveillance by these organisations before RIPA.
If RIPA has enabled us to see both the levels and abuse of surveillance powers, it has done us this favour at least. But the Surveillance Commissioner found generalized lax practice, a lack of proper justifications and proportionality, and little training or accountability: RIPA is being used because the powers exist, not because there is any pressing justification to use surveillance in this manner.
RIPA was always expansionary in that it allowed more than was intended. It was also a rag-bag; even the original e-mail surveillance provisions were cut and pasted from another bill. Like so much of the legislation from this government, it was poorly drafted and justified in parliament at the time by reference to issues (like national security) which little relevance to what most of the Act was about. And its appeals body, the Investigatory Powers Tribunal, is practically invisible, as the House of Lords Constitution Committee report on surveillance argued recently.
The Constitution Committee went a lot further than the government in this consultation document, arguing that surveillance powers should be reserved for the investigation of serious criminal offences and that should judicial oversight for all surveillance carried out by public authorities. Instead here, the government merely suggests moving sign-off powers higher up within the organizations. The Lords also suggested that there should have been proper provision for public accountability and post-legislative scrutiny in RIPA. Instead, this review is taking place due largely to government embarrassment over the constant stream of revelations.
Yet the government seems intent on extending surveillance and other powers still further; there has been a proliferation of databases, agencies, laws, and quasi-police. The new Communications Bill will extend surveillance powers over the Internet still further. The consultation document also reminds us in one section that there is still no meaningful regulation of the now ubiquitous CCTV cameras: they are outside of RIPA and, it seems, out of control. RIPA is merely one aspect of a very British tendency to manage things through surveillance before other means – which is a good working definition of a ‘surveillance society’. This has to be controlled, and in a rather more thoughtful and systematic way than these knee-jerk reviews in response to media concern.
*The edited version has now been published by The Times as ‘A very British tendency…’ They have just trimmed the attempt to broaden the argument at the end!
**This is what you get for writing something very quickly – in the editing, I compressed stuff that had originally said that Ofcom and the Charities Commission were using RIPA and that various organisations had been criticised into one sentence that implied that they were the organisations being criticised. Neither have been so criticised by the Surveillance Commissioner and I apologise to both for suggesting that they were.
Marina Hyde in the Guardian last week wrote a very interesting piece on the ongoing fallout from the death of Ian Tomlinson at the G20 protests in London. She argued that the appearance of mobile telephone camera foogtage, which revealed more about the way the police treated the passerby, showed that this kind of inverse surveillance (or what Steve Mann calls ‘sousveillance’) was the way to fight the increase of surveillance in British society.
I’ve been suggesting this as one possible strategy for many years too, however what Hyde didn’t really deal with is the other side of the coin: the fact that the authotorities in Britain already know that this is a potential response and are trying to cut down on the use of photographic equipment in public places. Anti-terrorism laws already make it illegal to photograph members of the armed forces, and in the new Counter-Terrorism Act, there is a provision to allow the police to isue an order preventing photography in particular circumstances. Further, it is now regarded as suspicious by police to be seen taking an interest in surveillance cameras.
The bigger issue here is the fight for control of the means of visibility, and the legitimate production of images. The British state is slowly trying to restrict the definition of what is considered to be ‘normal’ behaviour with regards to video and photography. In the new normality, state video is for the public good, but video by the public is potential terrorism; police photographing demonstrators is important for public order, but demonstrators photographing police is gathering material potentially of use in the preparation of a terrorist act.
However, I am not 100% in favour of the proliferation of cameras, whoever is wielding them. I think it’s essential that we, at this moment in time, turn our cameras on an overintrusive and controlling state. However a society in which we all constantly film each other is not one in which I would feel comfortable living either. A mutual surveillance society in which cameras substitute for richer social interactions and social negotiation, is still a surveillance society and still a society of diminished privacy and dignity. I worry that sousveillance, rather than leading to a reduction in the intrusiveness of the state, will merely generate more cameras and more watchers, and merely help reinforce a new normality of being constantly observed and recorded.
From today, private lives in the UK will be a little less private, as EU Directive 2006/24/EC becomes part of national law.
Traffic data on e-mail, website visits and Internet telephone calls now have to be recorded and retained by Internet Service Providers (ISPs). Specifically, the Directive mandates the retention of: the source of a communication; the destination of a communication; the date, time and duration of a communication; the type of communication; the type and identity of the communication device; and the location of mobile communication equipment.
This is coming into force despite the fact that many countries and ISPs still object to the directive. It has to be said that many ISPs are objecting on grounds of cost rather than any ethical reason. German courts are yet to determine the constitutionality of the directive and Sweden is not going to implement it at all.
As with many of these kinds of laws, it was rushed through on a wave of emotion after a particular ‘trigger event’ – in this case, the 7/7 bombings in London in 2005. There was a whole lot of devious practice in the Council of Ministers to get it passed too – if the Directive had been considered as a policing and security matter, it would still have needed unanimity, which means that the objections of Germany and Sweden would have vetoed the Directive. Instead, it was reclassified as ‘commercial’ on the grounds that it was about the regulation of corporations, and commerical matters need only a majority vote. How convenient…
The Home Office in Britain says our rights are safe because of RIPA, which is hardly cause for rejoicing. My main concerns, apart from the fact that this is yet another moment in the gradual erosion of private life, are that:
1. police access will rapidly become routine rather than specific, and this could be extended to many other public authorities – the original drafts of the Communications Bill would have extended the right of access to such data to all RIPA-empowered organisations (which includes most public authorities);
2. the data will be used illicitly by ISP employees for criminal purposes (remember that most identity thefts are inside jobs) – the records will be a blackmailers delight;
3. there will more ‘losses’ of this data by ISPs and others who have access to it. Remember the accidental revelation of user data by AOL in the USA?
One question that has been preoccupying my thoughts recently has been the question of why the simple things are not being done in Rio to address the problems of the favelas: sanitation, education, healthcare etc… many of the people we have talked to look back to the regime of Leonel Brizola, the Governor of the State of Rio de Janeiro from 1983 to 1987 and then again from 1991 to 1994. Brizola was a left-progressive populist, a social democrat and a former opponent of the dictatorship who had had to live in exile for much of the 1970s. Sadly he died in 2004, but we had the opportunity this week to talk to his former Secretary of State for Public Security, and also briefly Governor himself from 1994-5, Nilo Batista.
We met Professor Batista in the Instituto Carioca de Crimonologia (ICC), an independent research organisation, which he runs (and funds from his legal work), along with his wife, sociologist, Vera Malaguti Batista. The Institute is housed in a sleek modern building up in the hills of Santa Teresa, from whose picture windows the city below is all but invisible and the bay appears almost as it was when Europeans first arrived. However, the concerns of the Institute are very much with the reality of the city today.
We had a long and wide-ranging conversation, which would be impossible to recount in detail here, but the basis of it was an understanding of Brazilian society, and in particular that of Rio, based on the ongoing legacies of the past, in particular slavery and authoritarianism. Vera Malaguti’s book, O Medo na Cidade do Rio de Janeiro: dois tempos de uma historia (Fear in the City of Rio de Janeiro: one story in two periods) examines previous periods of revolt by Africans in Brazil and argues that the often unspoken elite fear of the africanisation of Brazil. They argue that repressive public security strategies today are founded in this same fundamental fear, driven by the media that serves the powerful middle classes who aspire to elite values and lifestyles.
In opposition they place Brizola and that brief (and they argue, unrepeated) period at the end of the dictatorship when social justice and in particular, education, were priorities and favelas were provided with services in the same way as any other neighborhood. The security strategy of Brizola and Batista was effectively one of anti-stigmatisation. They argue that since then, media-driven fear and repression has been far more the norm and this had undermined the progress made under Brizola.The current public security-based strategy of the Governor Cabral and the ‘choque de ordem’ of Giuliani-wannabe Mayor Eduardo Paes, is one example. By concentrating on ‘pacifying’ one or two places as examples (Santa Marta and Cidade de Deus at present) without being able to afford the same strategy elsewhere, it constitutes simply a public relations exercise, and elsewhere repression without development continues as normal.
The Batistas are passionate and well-motivated, but there are many who argue that this picture of a progressive Brizola regime subsequently undermined by repressive policies is at the very least, a limited view. It was, after all, under Brizola that the traffickers grew in power and acquired weapons; the mid-eighties was the key period here as the cocaine trade grew from almost nothing to being the driving force of gang activity in Rio. This isn’t just a view held by political opponents: whilst he certainly does not (and could not with any justification) claim that the rise of the cocaine trade was anything to do with Brizola, Enrique Desmond Arias in Drugs and Democracy in Rio de Janeiro, argues that the personalist populism of Brizola undermined the leadership of the Community Associations in the favelas and left them open to co-option by drug gangs. When we visited the office of the current Secretary of State for Security, Jose Mariano Beltrami, and talked with his representative, it was quite strongly argued that Brizola neglected the issue of the growing arming and violence of drug traffickers, and also did nothing to solve the massive problem of police corruption (on which I will write more later). The current longer-term strategy is now to recruit a lot more Military Police, in the hope that numbers will do what force has not, and enable the gangs to be beaten.
We also visited the office of a leading critic of human rights abuses, Alessandro Mollon, a Deputy in the State parliament. He said that Beltrami is actually shifting, without ever having admitted to it, from a very macho and repressive approach when he first arrived from the southern state of Rio Grande do Sul, to a more considered (but hardly progressive) strategy now, of which the emphasis on police officers on the streets, rather than invasions, is one aspect.
Former Mayor of Rio, Cesar Maia
The claim that Brizola was the last real progressive figure to lead Rio also neglects some others, particularly those who have held the office of the Mayor. Under Cesar Maia (1993-7; 2001-2008), the ‘Favela Bairro’ program had much in common with what Brizola did in social terms. Indeed when we asked the leader of the Morro dos Prazeres Community Association what would be the one thing she wanted above all else, it was ‘more Favela Bairro’. In Dona Marta they also had some time for the former governor, Anthony Garotinho (1999-2002) a frankly quite foolish evangelical populist, currently under investigation for corruption, as is his wife, Rosinha, who was Governor from 2003-7. However, we heard from others that the things that they attribute to Garotinho were actually planned or initiated under previous administrations and just did not see the light until his.
What is certainly the case is that Brizola had a better attitude to the favelados as people, than other administrations, regardless of his mistakes. The current regime certainly seems to be more driven far more by middle-class fears than by social progress, but it is also the constant undermining of the progress of previous administrations like Brizola’s and then later Maia’s terms as Mayor by new waves of media-courting repression that is so depressing in Rio. It happens in every democratic country, but here in Brazil there is the most blatant inequality of any wealthy country still crying out to be addressed. If it was, then most of the issues of ‘crime’ and ‘insecurity’ would start to disappear. It would, as Deputado Mollon also pointed out, be a lot cheaper than the massive amounts of money now going into the hands or private security companies – who, as Professor Batista noted are often run by the families of senior police officers, who therefore have no actual interest in reducing crime and every reason to want to see fear continue to grow.
(With thanks to Nilo Batista, Vera Malaguti Batista, Alessandro Mollon and the staff of the office of Jose Mariano Beltrami for their time and patience. In particular, I hope to return to the Instituto Carioca de Criminologia sometime in the future to talk about the findings of this project, and to submit something to their excellent journal, Discursos Sediciosos: crime, direito e sociedade)
ubisurv 