Norway, After the Event

I grew up in Norway until I was about 7, and so it’s hardly surprising that I’ve been thinking a lot about the country and its people following the recent attacks. I’ve spent some time over the last few days reading the manifesto of the self-confessed killer, but I’m not going to spend any time going over that farago of confused reactionary stupidity here.

What I am primarily interested in is how the country reacts, especially as we are now coming up to ten years after the 9/11 attacks -and the world is still living in the aftermath not only of the attacks themselves but of the reaction of the US and its subordinates. Surveillance Studies, along with many other research fields has documented and analyzed the turn to righter security and increased surveillance, and the corresponding weakening of longstanding individual liberties and collective rights.

But, if Norway’s Prime Minister, Jens Stoltenberg, has anything to do with it, Norway will not be going down the same destructive, counter-productive and vengeful path. Even though he himself and many people he knew were the targets of the attack, he has been emphasizing since that Norway should not compromise its openness and democratic values, on the contrary they should strengthen their commitment to those ideals.The New York Times today quotes him as saying:

“It’s absolutely possible to have an open, democratic, inclusive society, and at the same time have security measures and not be naive. […] I think what we have seen is that there is going to be one Norway before and one Norway after July 22 […] But I hope and also believe that the Norway we will see after will be more open, a more tolerant society than what we had before.”

Let’s hope so. My thoughts remain with the families and friends of the victims, and all the people of Norway. I’ll write more about the wider European reaction tomorrow or over the weekend.

Surely this is satire? Charles Clarke on liberty and security…

A comment piece allegedly by the former UK Home Secretary, Charles Clarke, has been posted on The Guardian newspaper’s site. I say ‘allegedly’ because it is hard to believe that a man in his position could write something to monumentally lacking in self-awareness or with less understanding of the issues he is discussing. He talks of a fourth Labour term (which is in itself increasingly a fantasy in which few, even in the Labour Party, believe) in which liberty and security are unified, “to consolidate the new constitutional relationships, establish consensus about the powers of the police and security services and address issues relating to identity”! He talks of CCTV and the DNA database as great advances, with no mention of the slamming of the operation of this database by the European Court of Human Rights and the massive climb-down by the government, or that fact that research commissioned by his own former Home Office Research Department shows that CCTV has little effect on crime. He claims that there is “an understandable public demand for more databases”; this will come as news to most people.He even claims that the Regulation of Investigatory Powers Act (RIPA) has been a success, ignoring the critical views of the regulators and the last Home Secretary’s promise to review legislation that has been used for all kinds of intrusive and inappropriate surveillance activities by local authorities.

Of course he is right that Labour deserves credit for establishing the Human Rights Act, the Freedom of Information Act, and for unifying the Information Commissioner’s Office (ICO). Yet these were all things that were done (or planned) in Labour’s first term and there has been little to celebrate in terms of liberty and security in Labour’s two terms since then, when even the ICO emerged, under former commissioner Richard Thomas, as one of the most trenchant critics of Labour’s activities.

But then right near the end, he suddenly switches to an entirely different line arguing that “The government needs to establish a coherent data regime that places the individual at the centre, with the practical right to see the data held on them and correct it if necessary. They should also be able to see who made any changes to data that is stored (and when the changes were made), and to give permission for the sharing of any data which is held”. The second sentence however misses the point of what the first implies (which in itself suggests that the regime Labour has created is incoherent). A data regime which places the individual at the centre would start not from permissions for sharing, but by asking what data needs to be stored, why, how and by whom. It would be based not a presumption of permission to share but on a request for such sharing with full disclosure of the purposes – that is the meaning of ‘transparency’, a word he uses in the next sentence, but missing from all of this are the words ‘consent’ and ‘accountability’. They are rather too important to be absent by chance.

And of course there is no mention at all of the role Labour has played in the EU and in other international fora, in spreading illiberal security ideas across national borders. The acceptance by the UK of things like the Prum Treaty and the Stockholm program have received almost no comment from British politicians on any part of the political spectrum (except in a general context of anti-EU nationalism, which misses the important issues involved).

All in all, if this is real, which I still can hardly believe, this is an astonishingly brazen and aggressively arrogant piece. It says everything about why, in terms of liberty and security, Labour have already lost the argument and why the country will hand over power at the next election to a bunch of upper-class twits with no coherent policies – in others words, anyone in preference to a party that once claimed that ‘things can only get better’ but has long since stopped even pretending that this is the case…

Britain is a surveillance society and it must change: detailed anaysis of the Lords Constitution Committee report

This is probably the best parliamentary report on surveillance I have ever read, and if only half of the recommendations are given any attention by the government, then Britain will be a much better place.

It’s 3.00am here in Brazil, and I have just spent the last four hours reading, analyzing and writing about the House of Lords Constitution Committee Report Surveillance: Citizens and the State. My expectations of the work of the committee have generally not been disappointed. This is probably the best parliamentary report on surveillance I have ever read, and if only half of the recommendations are given any attention by the government, then Britain will be a much better place. However it is not only relevant to Britain. The UK seems to have come to be regarded as some kind of model for other democracies to follow in terms of surveillance and security – at least by governments. Reading this report should serve to disabuse others of any notion that Britain is a good example.

Here’s the detailed analysis. It is long and there are no pictures! But this is serious stuff. I have gone through the whole report and thought about all the recommendations. It is worth remembering first of all what the Committee was asked to do. Here are the questions they started out with:

  • Have increased surveillance and data collection by the state fundamentally altered the way it relates to its citizens?
  • What forms of surveillance and data collection might be considered constitutionally proper or improper? Is there a line that should not be crossed? How could it be identified?
  • What effect do public and private sector surveillance and data collection have on a citizen’s liberty and privacy?
  • How have surveillance and data collection altered the nature of citizenship in the 21st century, especially in terms of citizens’ relationship with the state?
  • Is the Data Protection Act 1998 sufficient to protect citizens? Is there a need for additional constitutional protection for citizens in relation to surveillance and the collection of data?

The answers to the first and last questions are, in short ‘yes’ and ‘no’ respectively. Their basic conclusion is that increasing surveillance by the state is the greatest change to the nature of the relationship between state and individual in Britain since the end of the second world war. In opposition to the House of Commons Home Affairs Committee report from last year, and largely in support of our Report on the Surveillance Society form 2006 and that of the Royal Academy of Engineers from 2007, they show that Britain is a surveillance society, and that this must change. They do not go so far as to recommend an Information Act to bring all legislation in this area together, as I have been arguing, but they do advocate significant new legal / constitutional measures to rebalance the state-individual relationship in favour of the individual.

There are 8 chapters of consideration of all of the evidence given, which is treated in a very careful and even-handed way. The Home Office, the police and the Surveillance Commissioners for example, all come in for a telling-off at various points, but at the same time, some of the current government’s initiatives on openness are quite rightly praised (although of course they don’t go far enough in tackling the culture of secrecy that has plagued British government for far too long).

Who comes out of it well? First of all, the Information Commissioner, Richard Thomas and his office (the ICO). This is entirely right. None of this debate would have happened without him and he continues to push the agenda forward in an activist manner that many campaigners should look to as an example. Secondly, the media. The Lords seem to be very aware of the role of investigative journalists in holding the government to account. People are too willing these days to make blanket generalisations about the media as if they were all superficial and obsessed with celebrity. In the case of surveillance, the BBC and The Guardian in particular have done a great job. Thirdly academics and campaigners alike come across as far more informed and sensible about this than the state, which leads the Lords to recommend that the government pay us far more attention. On a personal note, it is a bit disconcerting to see myself, Surveillance Studies Network and other people and organizations with whom I work mentioned (approvingly) quite so much in such an important document…

The Committee place the two values of privacy and freedom as the foundations of its recommendations. The Lords argue that privacy and the restraint of state powers are at the heart of liberty, and that they should be taken into account at all times. There is, I am very pleased to see no mention of ‘trade-offs’ between freedom and security and it seems that they accepted my argument (they do quote me on this) that when claims to protect fundamental freedoms by increasing security are actually eroding those freedoms, the tacit agreement that binds people and state is broken. They stress that all organisations involved in surveillance and date handling need to give far more attention to privacy at all stage, indeed that it should be built in.

There are many individual recommendations.The first concern the Information Commissioner. Basically, the Lords argue that he should be given more extensive powers and more resources, specifically:

  • to have a role in assessing the effect on any new surveillance measure on public trust;
  • to be able to monitor the human rights (Article 8, ECHR) effects of government and private surveillance practices on the public;
  • to be consulted by the government at the earliest stages of policy development – they specifically attack the government for not doing thus far; to extend the ICO’s power of inspection to private companies (again something I am quoted on) – they don’t note that the power of inspection over government departments was only granted in a rush by Gordon Brown following the revelations of disastrous losses of data by various state bodies;
  • to speed up the implementation of the ICO’s new power to fine bodies that break the rule on data protection and freedom of information;
  • to be a statutory consultee on all surveillance and data processing laws and for the ICO to report to Parliament on this;
  • for the government and the ICO to undertake a review of the law governing citizens’ consent to use of their personal data – there is quite a lot of interesting discussion in the body of the report on how consent might operate, and I am very pleased that they haven’t, unlike the government, given up on the importance of consent;
  • for the government to work with the ICO on raising public awareness as it should already be doing but has failed to do;
  • and finally, and this is really important – for the Data Protection Act to be amended to mandate a Privacy Impact Assessments (PIA) “prior to the adoption of any new surveillance, data collection or processing scheme, including new arrangements for data sharing” with a role for the ICO in overseeing these. The government will probably try to ignore this, but this is the most crucial recommendation for future policy.

On the various other commissions – of which there are too many in my opinion – they merely recommend that the Surveillance and Communications Commissioner work together better and seek the advice of the ICO, especially with regard to the misuse of powers under the Regulations of Investigatory Powers Act (RIPA), and that the Investigatory Powers Tribunal stops hiding from the public. These are weak recommendations. Later they are rather more robust about the problems of having too many ineffectual regulators of RIPA, but despite a brief mention, any recommendations regarding the regulation of the Intelligence Services get quietly dropped along the way (not surprisingly). I would have thought that recommending at the very least that the offices of the Surveillance and Communications Commissioners are brought under the control of the ICO, if not completely absorbed into the ICO, would have been a much better long-term move.

They also have a number of other recommendations on the egregious RIPA, firstly that the (inadequate) administrative procedures are reviewed and secondly 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.” In my opinion, this effectively amounts to saying ‘repeal RIPA’ without saying so directly. The use of intense targeted surveillance powers to deal with minor infractions is what a lot of RIPA is all about whether that was the intention or not. It is an ill-thought out and badly worded law, like so many in this area.

The Lords recognize this deficiency in detail and specificity and argue as a general point, following the Human Rights Committee, that “the Government’s powers should be set out in primary legislation.” Crucially they also note that the government has not seemed very concerned with what happens after legislation is passed or how it works. They recommend the formation of a new Joint Committee in parliament on surveillance and data powers that would have post-legislative scrutiny as one of its key functions.

There are several measures concerning particular technologies. Their coverage of technologies of surveillance and data-collections is not too bad. I gave a seminar to the Committee on the range of surveillance technologies before they started their hearings, and I was beginning to despair at the levels of knowledge – “can they really do that?” was a common cry – and yet here they consider everything from CCTV to ubiquitous computing / ambient intelligence. There are still major deficiencies however. Although they take my point that government needs to get ahead of the technological game in order to regulate effectively, they still have not. They don’t recommend anything specific about the use of scanners in public places, location tracking, about the increasing dependence on RFID, or about the new flexibility, mobility, decrease in size and bodily intrusiveness of surveillance technologies and what this means for regulation. Mind you that is all in our report to the ICO that inspired all this (see Paragraph 4!)

They recommend that:

  • the Government comply fully with the recent ruling from the European Court of Human Rights that DNA profiles of innocent people are no longer kept indefinitely on the National DNA Database (NDNAD) – they also rule out a complete national database on both liberty and cost grounds, and argue that there should be a single, clear law governing the NDNAD and better transparency all-round.
  • On CCTV, they recommend more research on “the effectiveness of CCTV in preventing, detecting and investigating crime”, and more importantly that the government finally put CCTV on a proper statutory basis, with clear regulations, and systems of complaint and redress.
  • The report is at its weakest on the proposed new National Identity Register (NIR) and ID card. No2ID will not be happy, as all that they say is that “the Government’s development of identification systems should give priority to citizen-oriented considerations.” This is practically meaningless.Considering that this is the Constitution Committee report, and that the NIR and ID card are at the heart of how the government sees the information relationship between state and individual, this is also an unacceptable and compromised omission. No doubt it is evidence of a key area of disagreement amongst members, but the Chair should have banged some heads together on this one!
  • Although it is treated as a legislative measure, the Lords recommend mandatory encryption of personal data “in some circumstances.” This should have been stronger – bear in mind that most of the data lost by the state over the last few years was not encrypted
  • They also recommend that the government incorporate ‘design solutions’ in particular Privacy-Enhancing Technologies (PETs) in all new schemes. This is good as a minimum – we have to make sure that the government doesn’t use PETs as a way of claiming to have dealt with the problem – ooh, look: technology!

In other general measures for the whole of government, the Lords return to their central themes, specifically:

  • that Government should instruct government agencies and private organisations involved in surveillance and data use on compliance with Article 8 ECHR and in particular the legal meanings of necessity and proportionality. They also recommend legal aid should be available for challenges under Article 8.
  • a system of judicial oversight for surveillance carried out by public authorities, with compensation “to those subject to unlawful surveillance by the police, intelligence services, or other public bodies” acting under RIPA. This would be a severe blow the ad-hoc and effectively extra-legal expansion of surveillance powers under the present government. It would be great if it happens, but I am not going to hold my breath until it does…
  • increasing the stature and power of the data protection minister
  • lots of general blah about improving safeguards and restrictions on data handling and implementing standards and training, and education, to improve public confidence. But the thing is, public confidence isn’t really the main issue. Public confidence is low because the government and its private sector contractors have been time and again demonstrated to be incompetent.
  • there are also several paragraphs of recommendations which basically amount to saying ‘listen to the public’ and particularly, pay attention to pressure groups and research in this area because they know what they are talking about. They are right, you know – we do! They also want more research to get better information on public opinion in this area. We can do that too!

Despite this slight degeneration into well-meaning generality at the end, and despite the glaring hole when it comes to the NIR and ID cards, the principles advocated by this report, if implemented, would transform the direction of government in Britain. Many of the individual recommendations are things that I and others have been arguing for, for some time.

So what was the government’s first response? Well, the thoroughly useless Home Secretary, Jacqui Smith, according to the BBC has “rejected claims of a surveillance society as “not for one moment” true and called for “common sense” guidelines on CCTV and DNA.” When she has read the report she will realize that such guidelines are right in front of her – indeed, she got ‘common sense’ from the European Court on the DNA database some time ago and her department still does not know what to do with it!

As I said, if even half of this reported is acted on, Britain’s ways of dealing with surveillance will be transformed. I am not paying much attention to the Conservatives – in opposition you can say anything and they will beat the government with the liberty stick one day and the security stick the next. The question is, are New Labour brave enough to admit that their approach to surveillance has been almost entirely wrong?

We will soon find out.