Category: Rights

Another US court says police GPS tracking does need a warrant

The complex landscape of the US judicial system has thrown up a ruling on the police use of GPS tracking devices completely at odds with the recent ruling handed down by the appeals court in Wisconsin. The New York appeals court ruled 4-3 that police GPS tracking should require a warrant. Judge Lipmann’s words on the case, quoted by the New York Times,  are particularly interesting as it appears that he wa taking a long view of potential harm in making his decision. He said:

“One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.”

This long term thinking has to be applauded. Sometimes imagination is necessary in the law, and particularly when the issue is one of socio-technical changes. The technological determinism of ‘if it exists, then it must be used’ is a way of thinking that has to be challenged. The question now for the USA is if either of these case or others will find their way to the federal courts. Until then, US citizens and police do not really know where they stand and the constitutional questions remain open.

Phorm philling

UK satirical magazine, Private Eye, this week brings the ludicrous Stop Phoul Play website to my attention. This is a corporate spin site devoted entirely to defending BT’s underhand and intrusive ‘Phorm’ online advertising technology against what it calls ‘privacy pirates’ who they claim are either being paid or pushed to damage BT.

Those listed as ‘piracy pirates’ include the excellent investigative IT journal, The Register, the Open Rights Group and the brilliant Foundation for Information Policy Research (FIPR), along with numerous bloggers and contributors to web forums. Now, it may be that some other corporations with rival technologies would like Phorm to fail, just as Microsoft probably enjoys it a great deal every time Google takes a PR hit (or vice-versa), but to suggest that everyone who make a criticism of Phorm is secretly part of some conspiracy against BT is frankly, either stupid paranoid.

And there are very good reasons for being critical of Phorm in the trojan-like manner of its operation and the way in which it has been tested without the consent of users. As Private Eye also reminds us, Phorm has landed the UK government in legal trouble with the EU. It hardly needs a conspiracy to make people justifiably annoyed.

This is one of the weirder exercises in PR I have seen, not least because its paranoia and promotion of conspiracies can only be damaging to BT. Thus it is no surprise to find that, according to the The Register, that it is the product of the fevered imagination of Patrick Robertson, whose previous clients include the lovely General Pinochet and former Tory MP and convicted liar, Jonathan Aitkin. So go take a look at Stop Phoul Play (while it still exists…) – it really is quite insane.

US court rules GPS tracking is the same as the naked eye

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.

Surveillance: controlling people for the market

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…

High Court rules innocent man’s DNA must be removed from database

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)…

UK National DNA Database – what will change?

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.

As a result, there has been a splurge of sudden backtracks, retreats and promises of change and consultation on future plans but there have also been rather devious attempts to avoid taking real action to remedy already existing wrongs. In the first category, we have seen the abandonment of Clause 152 of the Coroners and Justice Bill, where a an blanket permission for government data-sharing had been hidden, and there have been suggestions that the proposed new super-database of communications traffic data might not be constructed after all – though largely, it seems, on grounds of cost not principle.

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’.

Goverment gives personal data to private companies

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.

The War on Photographers (continued…)

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?

RIPA Reform

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.

Is sousveillance the answer?

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.