Death to the ICO?

Chris Parsons draws my attention to a blog posting on the very swish and refurbished Privacy International site (nice job BTW – I will check in regularly). Simon Davies argues in this post for the ‘assisted suicide’ of the UK Information Commissioner’s Office (ICO) because it has become a ‘threat to privacy’. The bases for this argument are several, namely that:

  1. “the legislation that underpins the Office is narrow and in places regressive”;
  2. the ICO is “a quasi judicial regulator that sees its role as protecting data rather than people”, which leads to timid decisions;
  3. the ICO is sometimes “ill-informed… and almost always out of step with the more proactive and advanced regulators overseas” especially when it comes to technology;
  4. its complaints procedure is slow and frequently pointless;
  5. there are too many surveillance-related commissioners in the UK (the Surveillance Commissioner, the Interception of Communications Commissioner, the Equality & Human Rights Commission etc.)
  6. it is disconnected from “an information environment dominated by companies which appear to be largely exempt from local protections for citizens.”

Now, I’ve done some work on commission for the ICO, and therefore you might expect me to defend it from these criticisms. But in fact, I find much to agree with here, as well as some points with which I disagree, and much to ponder.

On the side of agreement,the ICO, like much of government, is undoubtedly technologically rather backward. When, in the Report on the Surveillance Society, we wrote about the way in which governments were behind the times, this was as much a message for them as for parliament or the executive. Maybe it is down to funding, maybe to institutional inertia, maybe deliberate choice, but the ICO has still has not taken serious steps to remedy this as Simon points out, and relies largely on occasional external reports, many of which are in any case general rather than specialist, to update it.

I also agree with the charge that the ICO has been relatively powerless in the face of the rise of corporate surveillance. This is not surprising given its origins as an arm’s-length regulator of government, and some of the particular issues of concern – like whether it took the Google wireless hacking episode seriously enough or made the correct decisions – are far from obvious. But one can clearly contrast the relatively activist stance of even quite bureaucratic Privacy Commissioners like the federal Canadian body over Facebook, with the ICO. It has in the recent past taken some serious actions against illegal private sector surveillance – for example the bust of a notorious blacklisting firm – but this direction appears to have fizzled out. Not being privy to internal policy discussions, I am not sure why.

Then there are some areas in which the criticisms are valid, but which may not be directed at the right target.

The first of these is the proliferation of Commissioners of various kinds – and incidentally, we have thankfully been spared the birth of yet another one with the cancellation of the ID Cards scheme. I have also been arguing for the merging of all the various surveillance-related quangos for a long time. The reason so many of them exist is partly because of the piecemeal way in which British legislative process occurs. There are rarely comprehensive Acts covering broad areas, instead existing institutions, however inappropriate to the job needed, are often merely supplemented or modified. The other reason is of course the ongoing effort to protect certain parts of the state from serious scrutiny, in particular the intelligence services and political police.

The second is that, fundamentally, it seems clear that British data protection and privacy legislation is generally archaic and not up to the job. Neither is its Freedom of Information legislation, even though it was a massive advance on the culture of secrecy that preceded what in retrospect may have been one of New Labour’s most important measures.

However, I am not sure that either of these points are in themselves a criticism of the ICO but rather of the legislation which created it, and the governance environment in which it has to operate. The way in which the ICO came about, through a rough fusion of old Data Protection and newer Freedom of Information functions produced a lumbering Frankenstein’s monster made of parts and bits, kept going on a drip-feed of limited funding, something that was never going to be capable of what campaigners expected of it. The same could be said partially of the critique of the complaints procedure, itself is a widely shared opinion and one with which I would not take issue. However, how much of this is down to the limited funding and staffing, and once again, the foundational legislation which hampers as much as empowers the ICO to do much of what we outsiders would want them to do?

Then, some of the criticisms are more personal opinion, with which I am sure many in the ICO would disagree, particularly the idea that the ICO does not care about people. Both Simon and I know many people in the ICO personally and whatever our political differences with them, the idea that they are heartless data bureaucrats with no interest in people is a rather unhelpful and hyperbolic caricature, as is the idea that the ICO is an ‘enemy of privacy’. The ICO had a legally mandated job to do first and foremost and it needn’t, legally, go beyond that at all. Yet it has. The interventions that the previous Information Commissioner, Richard Thomas, made on surveillance in particular were absolutely vital in adding a new level to a debate that had previously, despite the best efforts of activists, campaigners and researchers, been of more marginal concern. One could argue that surveillance and privacy would never have become such a topic parliamentary debate, let along an election issue, without his advocacy. Certainly it hasn’t gone far enough, but is has hardly, during this period at least, acted as a stereotypically uncaring bureaucracy.

So what of the solutions?

Simon advocates only one: that the government “scrap the data protection functions of the ICO and building a new Privacy Act that creates a true watchdog with a broad mandate.” It is hardly surprising that Privacy International see the ‘privacy’ element as the most important one here. Simon will also not be surprised to discover that I disagree with him on this. In fact, my argument for a while has been that privacy cannot justifiably be prioritised over other forms of human informational rights. In addition, the concept of ‘human rights’ in general does not deal with everything about information relationships, positive or negative, and the many elements of those information relationships between state, citizen and corporation cannot be so arbitrarily separated.

I would therefore argue that a comprehensive Information Act, which covered citizens’ rights to information (their own, and that generated by government and corporations), their rights of privacy and the more general parameters of what the state and companies may know of those who information this is and how they are allowed to do so (i.e the limits of surveillance). I agree that ‘data protection’ is an out-of-date concept. But ‘privacy’ does not, and cannot, replace it, at least not alone. Privacy Commissioners, where they exist, find themselves dealing with a lot more than privacy and end up becoming ‘surveillance’ or ‘information commissioners’ in practice or by stealth, and in some cases an emphasis on privacy over all else can hamper legitimate needs to know (as has been true in the case of family members of elderly patients with dementia in Canada for example).

My conclusion about what a new Information Act would contain in terms of the regulatory bodies has something in common with Simon’s view, but I have two options. One is the creation of a single mega-regulator – a real Information Commissioner that covered all the areas of our information relationships with the state and corporations that would be able to go after corporations, local and national government over issues of their secrecy, transparency and accountability, and our privacy and informational needs. It wouldn’t just merge the existing ICO, Surveillance Commissioner, Interception of Communications Commissioner and so on), but start with new legislation and a new structure.

The other option would be a merge all the existing bodies but create two new ones to replace them: a Surveillance and Privacy Commissioner, to cover all of the areas of state and corporate intrusion into the lives of citizens, but also a Freedom of Information Commissioner, to cover the equally vital areas of state and corporate transparency and accountability. Privacy without FoI, whether together in one organisation or separate, is altogether too defensive an approach to what we can expect from the state.

And whichever route one took, the organisation(s) should have a wider range of powers built in and required – research (including technological foresight), advocacy, assessment, response and enforcement functions – with protected funding and legally binding decision-making capability. I think we would all be in agreement on that…

New ICO Surveillance Report

The UK Information Commissioner is reporting to Parliament on the state of surveillance, based on an update report on developments since 2006 authored by Surveillance Studies Network members (including me).

On Thursday 11th November, Christopher Graham, the UK Information Commissioner, sent his report on the state of surveillance and recommendations for action to the House of Commons Home Affairs Committee. His report includes the SSN-authored ‘An Update to a Report on the Surveillance Society’, on which it is based.

The update report, co-authored by Charles Raab, Kirstie Ball, Stephen Graham, David Lyon, David Murakami Wood and Clive Norris, was written in the first half of 2010. It features a review of UK surveillance since they wrote the 2006 ‘Report on the Surveillance Society’ for the Information Commissioner’s Office. The new report focuses on developments in information collection, processing and dissemination, and on the regulatory challenges posed by these surveillance developments.

The Commissioner’s overview and recommendations, and the SSN update report, can be viewed here. I’ll put something up about what I think about his recommendations later after I have had a chance to read them…

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…

Private Sector Data Losses

People often concentrate rather too much on abuses by the state of personal data. But private sector organisations are certainly no better. One key example was made public this week, when the new UK Information Commissioner, Christopher Graham, announced that he would be prosecuting a major mobile phone company (he is not saying which one yet*) for selling personal information which it held on customers. The trade in personal information is a very difficult thing to regulate: telecoms companies will deny up front that they ever do anything like this, but yet we know it happens frequently in every jurisdiction, in both management-sanctioned and illicit forms; and practically, of course, once the information is ‘out there’, it cannot be recalled. So, no-one should feel safe just because they have ticked (or unticked) that little box under all that often indeciferable text about what a company might do with your data. I hope that whatever firm this is, it gets hits where it will hurt most, on its bottom line.

*Update: T-Mobile have now confirmed that they are the company responsible.

UK Ministry of Justice sounding old, tired and defeated

I was at a meeting organised by the Information Commissioner’s Office (ICO) today (Wednesday) in London where both Jack Straw and Michael Wills from the Ministry of Justice spoke. In the wake of the expenses revelations it was not surprising that both sounded somewhat conciliatory, but the degree of both overt and tacit admission of mistakes and changes needed was quite surprising. I had a bit of a set-to with Michael Wills on the apparent lack of knowledge amongst government ministers of the results of their own research on the (in)effectiveness of CCTV, to which he responded with the Melanie Phillips defence – i.e.: come and talk to ordinary people and they will tell you they want CCTV. This is a diversion for many reasons, not least of which is that unlike both the Daily Mail’s moral minority and the minister, I actually live in places where they only visit on official business and I also understand that what people mean when they demand CCTV is not the technology itself but a solution to the real and perceived problems of crime and anti-social behaviour that they face. They only demand CCTV because they see the programs on TV and are convinced that CCTV ‘works’ – however if you talk to senior police officers or anyone who has done research on this, they will tell you, yes, targeted mobile CCTV surveillance to deal with specific problems can be very effective (in terms of both cost and results) but mass camera surveillance is not the same thing. It is rather disappointing that a Justice Minister did not appear to understand the difference.

Jack Staw gave a weird speech. It was both full of matey bonhomie and characterised by stuttering hesitancy and vagueness. He made a number of historical errors, for example in claiming that the culture of secrecy was a product of the Cold War, when the first Official Secrets Act was a product of WW1. He also claimed that CCTV was all about ‘low-level disorder’ and ‘reassurance’, which will be news to all those (like his ministerial colleague) who still think it prevents crime. But he did rightly take some credit for Freedom of Information, including allowing parliamentary expenses to be included, even as it turned out, to his latter-day embarrassment.

Where it got very interesting was in his comments on the government’s consultation on the future of the DNA database following the damning verdict of the European Court. Contrary to Jacqui Smith, Straw indicated that he would be quite happy with the proposed 12 year retention period being reduced to 9 or even 6 years. He also claimed that there was a behind-the-scenes review of The Terrorism Act and other post-9/11 measures going on, which I don’t think many people in the room even appreciated. He admitted that the Labour government got many things wrong after 9/11 and that the environment had now also changed.

It was all very interesting, but you really got the feeling that this was a government on the way out anyway. The Tories will no doubt scrap the ID cards and register, but listening to the Shadow Justice Minister, Dominic Grieve, I got the impression that they don’t have much to offer apart from caution. That might be welcome for a while, but as a speaker from Google remarked, the debate is so far behind the reality of technological change that none of this will really matter very much unless there is a real culture shift. The ICO under the massively influential Richard Thomas, for whom this was very much a valedictory event before he steps down, has made great strides in this direction, but the government and opposition parties are still a long way away from understanding the need to establish a new basis for informational relationships between people, state and private companies that we desperately need.