UK – Page 2 – ubisurv

What now for the UK’s anti-terrorism laws?

On the 12th of January, the European Court of Human Rights (ECHR) ruled in the case of Gillan and Quinton v. the United Kingdom, that UK police powers to randomly stop and search people under Sections 44-47 of The Terrorism Act (2000) were unlawful. This is the third recent ruling by the ECHR against the current direction of the UK’s security policies (after the ruling in S. and Marper v. the UK, against the police retaining DNA profiles and fingerprints from people not convicted of any offence). It also follows the furore over the London Metropolitan Police’s interpretation of Sections 43, 44 and 58s of The Terrorism Act in relation to public photography.* The case was brought by two people, Pennie Quinton a journalist who was on her way to cover a demonstration against an arms fair in London in September 2003,, and Kevin Gillan, who was cycling past.

Section 44 allows the police to stop and search anyone on the basis of a ‘reasonable suspicion’ that they may be in posssession of information or items that may be useful in committing an act of terrorism. The case in the ECHR was on several principles, most of which were rejected, but most importantly the Court found that arbitrary stop and search dis violate Article 8 of the European Convention, on the right to privacy. This was because “the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life”.

Furthermore the UK government once again argued, as it did equally unsuccessfully in the case of Peck v. UK back in 2003, that Article 8 did not apply as there was no right privacy in public places. This argument, the Court not only rejected but actually argued that the publicness of the stop and search made the violation of privacy worse:

“Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court’s view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”

This was a well-thought out ruling which made the arguments pretty clear. However the response of the UK government, as in the DNA case, leaves a lot to be desired. In fact, it has basically said, “make me”! The government intends to ignore the ruling in everyday practice, as it did with Peck, and will continue to allow police to carry out such searches whilst it appeals the case. This also means that there will be no disciplinary action against any officer who follows this policy, despite its now being unlawful.

*This of course is by no means over either, and there will be a mass photography action, “I’m a Photographer Not a Terrorist!”, on January 23rd at 12 Noon, Trafalgar Square in London.

British cops still haven’t got the message about photography

There is a disturbing film and story on The Guardian site which shows two London Police Community Support Officers (PCSOs) hassling an Italian art student, Simona Bonomo, largely, it seems to me, because she wasn’t submissive towards them and stood up for herself. This comes several months after the Home Office issued new guidelines, yet it looks like photography and filming is still being treated as if it is inherently suspicious – as Marc Vallée points out.

The additional issue is that PCSOs are not even proper trained police officers in the first place, yet they increasingly seem to be under the impression that they can make the kind of judgements that senior police officers should be making. There need to be some changes to UK law here (amongst many of course!) – one to replace Section 44 of the Terrorism Act, since it seems clear that it can’t be interpreted appropriately, and secondly, the powers of PCSOs need to more carefully delineated and restricted.

For those involved in photography, video or film-making, in the UK or nearby, there will be a mass photography action, “I’m a Photographer Not a Terrorist!”, on January 23rd at 12 Noon, Trafalgar Square in London.

UK government to make CCTV useful?

That’s the way The Register puts it anyway… and there is more than a grain of truth in this. After 20 years of open-street video surveillance in Britain, it is not a safer place and the cameras are not event helping to solve that many crimes, let alone preventing them (which, let us not forget) was what was promised back at the beginning. The government in the UK is now (finally) becoming concerned about this and is apparently going to appoint a CCTV Commissioner or something similar and try to rationalise the crazy landscape of video surveillance in Britain.

However, the key lesson from the fact that video surveillance doesn’t really work should surely be that they might want to start reducing the numbers of cameras and putting the investment into something else. This isn’t going to happen. Instead, the UK government is still promoting video surveillance around the world and more and more places in every country seem to think that they should install CCTV because it ‘works in Britain.’ I even saw one story the other day saying that there had been no formal studies of the effectiveness of CCTV, which of course is simply not true – there have and they generally show little effect on crime, but the conclusion of this article was that in the absence of evidence, cameras were a sensible precaution.

How does that logic work? Since when did effective public policy on crime consist of throwing money at shiny toys? I think it was Harold Macmillan who said that when we need to be seen to be doing something, form a committee. In a high-tech age, people aren’t bought off by committees any more, but shiny gadgets will do it. And if the shine wears off, if the ordinary dull old cameras now don’t work, then there will be even shinier and newer mobile cameras, flying cameras, and probably cameras with frickin’ laser beams… Public policy on crime seems to be stuck on a technological treadmill. It’s time to step off.

UK DNA Database Criticised by Report

The UK’s DNA database, already under fire by the European Court of Human Right for retaining samples and data from innocent people, has now been lambasted in a report by the government’s own genetics watchdog. The Human Genetics Commission.

The report, called Nothing to Hide, Nothing to Fear? contains a numbers of serious criticisms, most notably the finding that police forces around Britain are routinely arresting people simply in order to obtain their DNA. Almost a million innocent people, including many children, are now on the database, and the ECHR ruling has finally prompted the government to make some minor concessions, such as keeping the DNA of innocent people for 6 years as opposed to 12, but there appears to have been no fundamental change in police practice, nor any change in the instructions given to local forces on best practice.

It’s main recommendations are:

that there should be a parliamentary debate about the recording of what it calls ‘unconvicted’ people;
that because the purpose of the database has shifted over time, there should be constraints set out in new primary legislation;
that “robust evidence of the ‘forensic utility’ of the database should be produced to justify the resource cost and interference with individual privacy it represents”; and,
that there should be an independent oversight board and appeals board to consider removal of profiles; and transparency over data and other issues.

These are all laudable, but I really start to question their judgement in using the term ‘unconvicted people’. British law has always worked on the principle of ‘innocent until proven guilty’. People are therefore ‘innocent’ until they have a conviction. The term ‘unconvicted’ seems to imply that innocence is no longer an assumption, and that the working hypothesis is that everyone is either guilty or not yet (therefore, potentially) guilty. This is what results from the normalisation of surveillance in everyday life, and it’s one thing we warned most strongly against in our own Report on the Surveillance Society back in 2006. When even critical reports start using language that reflects the worldview of the people they are criticising, you have to be concerned.

Calling people ‘unconvicted’ and not ‘innocent’ matters.

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 pushes forward with online data retention plans

Like Canada, the UK is pushing forward with new plans to force telecommunications companies and ISPs to retain online data, despite opposition from both the industry and ordinary service users. The New Labour govenrment had delayed the plans from last year, faced with the strength of the opposition and launched a ‘consulation’. The consultation apparently still generated 40% opposition, which one would think was enough to tell them that something was wrong. But, as I said last year, “the collection of such traffic data will still go ahead… partly at least because the Americans want it; there is pressure on many countries for this kind of data collection and storage – see for example, the FRA law in Sweden. Networking these databases together with others is a major aim of the FBI’s secretive ‘Server in the Sky’ project.”

However, now the UK plans go further than many other countries’ schemes in this area, as they would cover not only traffic data but also a whole range of data which would not normally have been regarded as traditional communications like social networking activity and even internal online gaming data. This would seem to be in line with US programs that regard the behaviour of – let’t not forget, fantasy – game and virtual world avatars as somehow indicative of real-world tendencies and practices (e.g.: Projects VACE and Reynard), an extremely dubious assumption and one which extends the reach of the state into people’s fantasy and dream lives.

The BBC story mentions an estimated 2Bn GBP (around $3.5 CAN) cost for this – which will no doubt be passed on to service users – but given the immense problems posed by some of this data, I would reckon that this could a massive underestimate, especially if one takes into account the UK state’s history of appallingly-managed computerisation and database-building schemes. The original plans also would have allowed all agencies empowered under the Regulation of Investigatory Powers Act (RIPA) to make use of such data, and the RIPA consultation response from the UK government did contain some indications that some new agencies would be given powers of access, but I am still not sure whether the government will keep the list of agencies as long as it was in last year’s draft Communications Bill.

Guardian article

The Guardian‘s Comment is Free site published a short version of my critiques of RIPA today… you can read it here.

Or the full version prior to editing is here:

A little-known tribunal is meeting this week to consider a case a case of wrongful surveillance. The case brought by Jenny Paton and Tim Joyce against Poole District Council in the Regulation of Investigatory Powers Tribunal concerns the local authority’s targeted surveillance measures against the couple and their children in an investigation of their application for school places. Among other activities, council employees trailed the family and interrogated neighbours.

The case comes in the same week that the government issued its response to a consultation process on the reform of the law which the tribunal oversees: the Regulation of Investigatory Powers Act (RIPA) (2000). RIPA has proved controversial as it seems to give many different public bodies new powers of surveillance, but that isn’t entirely true: as many local council officials admit, much of this was going on before 2000, but RIPA regulates and restricts it – in fact, it restricts it too much to some of the published responses to the consultation process. It is, however, almost impossible to determine whether RIPA has increased or decreased surveillance of this kind as no consistent records were kept prior to RIPA’s introduction. What is certainly the case is that the public is now more aware of the use of surveillance powers by agencies they had never realized were allowed to do such things.

Surveys have found that only 9% of RIPA authorizations resulted in either prosecution of enforcement action. In Australia, earlier this year, when only 28% of the use of targeted surveillance (in that case by police) resulted in prosecutions, their law was denounced as an excuse for ‘fishing expeditions.’ So what does a 9% rate indicate for Britain? Desperation perhaps? Or at least that RIPA was being massively overused for trivial issues. The House of Lords Constitution Committee report, Surveillance: Citizens and the State, certainly thought so, arguing not only that the inadequate administrative procedures should be reviewed but also that the government should think again about the whole business of allowing Local Authorities police powers, and that in any case, these powers “should only be available for the investigation of serious criminal offences which would attract a custodial sentence of at least two years.”

The government has failed to take heed of these recommendations. Ok, so they have agreed to restrict the authorization of covert surveillance under RIPA to ‘Director, Head of Service, Service Manager or equivalent’, and that Local Authorities should designate compliance officers so there will be no more junior officers deciding to play James Bond, as in the Poole case. However, by going to a ‘consultation’ whose respondents were dominated by Local Authorities and other RIPA-enabled agencies, they have managed to avoid doing anything particularly radical. This started from limiting the scope of the review through the questions they asked in the consultation.

For example, by asking which covert investigatory techniques specifically should be removed (and discounting any views that said ‘all of them’) they managed to get a mixed set of answers that failed to produced a clear vote against any one technique. Result: no techniques get removed and in fact some of the existing allowed techniques get extended to yet more agencies, for example the new Child Maintenance and Enforcement Commission (the replacement for the Child Support Agency). In particular, this extension of powers covers telecommunications data, whose keeping by the state has of course increased since RIPA was proposed. Now RIPA will be used to allow new bodies access to this data.

A curious note throughout the response by the government is the insistence on using an idea of non-interference with law-enforcement as a reason for not allowing elected officials any more than strategic scrutiny over the actions their own officials take under RIPA. This matters because RIPA is just one of many ways in which law-enforcement is not spreading as a function to increasing numbers of agencies beyond the police and judiciary. This seems to be general position that New Labour has taken – although it hasn’t always got its way – does anyone remember the dropped proposals to allow any ‘responsible people’ to levy on the spot fines?

And the government response seems to take a bullish delight in attacking those who have criticized the surveillance society. They insist, for example – and despite all the evidence to suggest that such interventions have limited effectiveness – that Local Authorities should make more use of overt, mass surveillance, like CCTV, instead of using RIPA. They are creating a binary choice, which seems to say assume that some kind of surveillance should be used: which do you choose, overt or covert? But, of course, that shouldn’t be the choice at all. They are also trying to have their cake and eat it on CCTV: the response to the consultation dismisses those consultees who brought up the subject of CCTV – which is not covered by RIPA – but feel quite able themselves to recommend its extended use in their own response. This of course also ignores the perfectly legitimate feeling amongst many that it is about CCTV was brought under proper control and a reformed RIPA might well be the place to do it.

Then there are things missing: notably, the concentration on Local Authorities, which for the most part has completely obscured the use of covert surveillance by central government departments and arms-length agencies including the Department for Environment, Food and Rural Affairs (Defra), the NHS and the Environment Agency, all of which have been criticized in the past by the Surveillance Commissioner. Nothing seems to be proposed to increase the visibility of the RIPA Tribunal which is, just for now, in the news. The Lords described it as all but invisible and weak. Nor do the government propose to do anything to strengthen training or the Code of Practice, and in any case, there has been a huge over reliance on such self-regulation for matters which should have more formal control; this is also how CCTV and the security industry is largely – and incredibly ineffectively – regulated in the UK.

Pretty much anyone could have predicted this limp response from the Home Office to some rather serious problems. They don’t read their own research, they don’t do consultation in a meaningful manner, and then, surprise, surprise, they conclude that there really isn’t very much wrong after all. Jenny Paton and Tim Joyce may well disagree, and let us hope that the RIPA Tribunal do too.

RIPA to be limited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Europe’s Surveillance State

EU_surveillance — The Open Europe report

I have just got hold of a new report by UK-eurosceptic think-tank, Open Europe, called How the EU is Watching You: the Rise of Europe’s Surveillance State, which whilst it isn’t as startling as the NeoConPanopticon report from the Trilateral Institute and Statewatch, does some to collect some useful information together in one place. Crucially the report points out the same thing as Will Webster and I did in our paper in JCER a couple of months ago, that this isn’t just a case of ‘European’ bad practice being imposed on the UK, but just as much UK bad practice being exported and generalised throughout Europe.

One interesting footnote is how the discourse of opposition and analysis is changing. A few years ago, and still in academia, the idea of the ‘surveillance society’ was the dominant way of describing the situation, but now there is once again an increasing focus on the ‘surveillance state’ or the ‘database state’. This is partly, I think because there are an increasing number of right-libertarian and anti-state or small-state groupings openly opposing increasing surveillance – for example, the new Big Brother Watch in the UK, and they tend to emphasise the state’s role (or in this case, the role of an organisation they regard as an unaccountable superstate). This also reflects the growing opposition from the UK in particular. This is particularly interesting because in the past, the idea of the ‘surveillance state’ was mainly a historical term to do with the development of repressive political policing, especially that involved in colonial counter-insurgency – see, for example, Alfred McCoy’s new book, Policing America’s Empire, on the role of the US occupation of the Philippines in the co-evolution of US and Filipino state surveillance practices – or in the totalitarian regimes of the former Eastern Bloc.

The landscape today is much less obviously one of state control. Indeed one could see these developments as a result of the retreat of the power of the individual state and an attempted reconfiguration of state-power of a new kind at a supranational level. And, this power is crucially dependent, as it has been since the end of WW2 on the private sector. The military-industrial complex is now a security-industrial complex and security is no longer anywhere near being simply state business.

UK police still adding innocent people’s DNA to database

Research in the UK has shown that police forces in Britain are continuing to add the DNA – and incidentally the fingerprints, although this is never mentioned – of innocent people to the DNA database despite the European Court of Human Rights ruling that it was illegal (and the government’s promise to accept the ruling). According to The Guardian newspaper today, 90,000 innocent people have been added to the National DNA database (NDNAD) since a the court ruling and the Association of Chief Police Officers (ACPO) – incidentally, a private organisation – is still telling chief constables to continue with this collection. On the other hand the process of removing individual profiles has been painfully slow: only 611 DNA profiles of innocent people have been removed, and all as a result of individual challenges in court. It seems that the police are determined to drag their feet as long as possible and, in fact, break the law quite openly. Hardly a good example…