Information Commissioner's Report
Summary and recommendations
Since 2006 there has been welcome strengthening of
the data protection regime, a higher and better-informed level
of debate and scrutiny of surveillance related developments as
well as a renewed political commitment to address the unwanted
consequences of existing measures that raise concerns about unwarranted
surveillance of the citizen.
Despite these welcome changes, technological and
societal developments have proceeded and the risks to individual
privacy remain real. Further safeguards are still required and
require further protection. The Commissioner recommends:
a) Increased adoption of a 'privacy by design'
approach through greater use of privacy impact assessments and
adoption of privacy enhancing technologies across public and private
sectors aimed at ensuring reductions in information risks
b) Inclusion of robust privacy safeguards as
the default setting when new on line services are offered to individuals
c) A requirement for a privacy impact assessment
to be presented during the parliamentary process where legislative
measures have a particular impact on privacy
d) An opportunity for the Information Commissioner
to provide a reasoned opinion to Parliament on measures that engage
concerns within his areas of competence
e) Increased post legislative scrutiny of legislation,
based on a formal report on the deployment of the legislation
in practice, the value of the information collected, the impact
on privacy and the continued need for such measures
f) In certain appropriate circumstances inclusion
of a sunset clause in legislation that is particularly privacy
intrusive
Introduction
The Home Affairs Committee in its report on its inquiry
entitled "A Surveillance Society?" (HC 58-I) recommended
that the Information Commissioner produce a report to Parliament
on the state of surveillance (recommendation 2, paragraph 36).
This report is in response to that request. The Commissioner had
given evidence to that inquiry submitting in evidence commissioned
research entitled "A Report on the Surveillance Society"
produced by the Surveillance Studies Network, a group of respected
academics and experts in this field. That report was published
by the Commissioner in 2006 and this led to increased parliamentary,
media and public interest in the developing capability to monitor
and record information about citizens as they go about their daily
lives. That report observed that much of what is taken as surveillance
is undertaken for benign reasons with the aim of providing beneficial
results for individuals and society. However the capacity to record
information and to do so in many different contexts was increasing
and this posed risks to individuals and society as a whole that
needed to be addressed.
In the intervening period the Commissioner has developed
his approach from one of helping ensure proper debate about developments
to one of developing tools to assist with the effective proactive
consideration and addressing of privacy risks in new developments.
The production of a Privacy Impact Assessment Handbook and encouraging
a 'Privacy by Design' approach to building privacy safeguards
from first principles are examples of the practical focus of this
work.
Since 2006 the value and vulnerability of personal
information has become increasingly apparent with high profile
information security breaches. This has further engaged the concerns
of the public, parliamentarians and the media. It was apparent
that information risk had outpaced the safeguards and governance
in organisations as well as the regulatory sanctions necessary
to encourage responsible use of personal information and to deter
and punish those who do not live up to their legal responsibilities.
The Commissioner has been given powers to impose monetary penalties
for significant breaches of the law, to draft a statutory information
sharing code of practice to encourage best practice and to carry
out non-consensual audit and inspection activities.
More recently concern over increased surveillance
has become an election issue. The new Government has declared
its wish to increase citizen control of their information and
roll back what has been described as "the database state".
These ambitions are in their early phase and how these will be
met not yet fully articulated.
It is against this backcloth of substantial developments
since 2006 that the current state of surveillance and the adequacy
of any safeguards must be judged.
Developments in surveillance since 2006
The centrepiece of this report is the attached update
report by the SSN entitled "The Surveillance Society-An update
report on developments since the 2006 Report on the Surveillance
Society". The Commissioner is indebted to the team that produced
the report for again producing an expert and perceptive analysis.
Their report gauges the changes between the original report and
the present day. The report provides an authoritative account
of the main trends and developments in surveillance in the United
Kingdom and draws conclusions on whether safeguards and regulation
have kept pace with these developments.
The report examines the information collected on
individuals. It describes the proliferation of government databases,
the increased use of CCTV and allied technology like automatic
number plate recognition (ANPR) and how these can creep beyond
their original function. It goes on to look at how there is increasing
sophistication in the combination, analysis and sharing of information
with the effect of sorting individuals into different categories.
It notes how privacy risk can increase as personal information
is shared more widely and how trends in social networking create
new significant challenges.
The report analyses the impact of these developments
noting that these engage a host of privacy and human rights issues.
These arise from increased analysis of information and profiling
of individuals, wider sharing sometimes for undeclared purposes
and the flow of information beyond national boundaries. Function
creep continues to be apparent and this undermines transparency
and accountability. This is further underscored by the blurring
of boundaries between the public and private sectors.
The report notes that since 2006 visual, covert,
database and other forms of surveillance have proceeded apace
and that it has been a challenge for regulators who often have
limited powers at their disposal, to keep up. The report looks
at how the regulatory landscape has changed and how this may do
so in the future. The report observes that the quality of debate
surrounding developments is hampering proper consideration. Anticipating
and controlling new developments is a constant challenge. This
has become more difficult as issues become enveloped in what is
described as a 'hyperbolic fog' of claims and counterclaims about
benefits and dangers concluding that Parliamentary and regulatory
scrutiny would be improved with less exaggeration of the benefits
and the dangers of surveillance.
The report concludes that there has been a better
level of public, media and political debate since the previous
report with surveillance becoming an election issue and being
one of the first matters to be addressed by the incoming government.
However, there are still many areas where surveillance continues
to intensify and expand. Technologies that used to be the subject
of speculation have moved into mainstream use. The linking and
sharing of data from different databases, development of facial
recognition, the increased rollout of ANPR, private sector data
gathering and analysis and increased information sharing are of
particular note. In the longer term the continued development
of 'ubiquitous computing', the deployment of sensing devices and
the use of analytical tools to predict human behaviours will continue
to challenge the existing regulatory repertoire and traditional
assumptions.
The report poses the question whether regulation
and crucially the awareness of the public has kept pace with the
development of surveillance since 2006. It recognises that the
increased powers within the regulatory system and the encouraging
efforts in both public and private sectors to change the culture
in personal information practices have been positive developments.
It also recognises the role played by privacy impact and other
proactive assessment methodologies and the increased interest
in embedding privacy friendly mechanisms. However it observes
that these must become the norm not the exception as at present.
It concludes that important questions are whether current legal
instruments on data protection and human rights at both domestic
and European level are robust enough to limit surveillance and
excessive collection of data and whether legal reform and better
integration of the legal and other regulatory instruments will
be the linchpin on which much else depends.
Information Commissioner's perspective
The Commissioner believes that the analysis of the
developments in surveillance described in the report is soundly
based. He recognises developments that have caused him to intervene
to ensure that a data protection compliant approach is adopted.
The creation of a national ANPR data centre by the police, the
blanket requirement by some licensing authorities to install CCTV
in all licensed premises irrespective of need, the fingerprinting
of passengers using common departure lounges at airports and the
creation of 'blacklist' databases are all instances. The continued
stream of self reported security breaches continues to underline
the risks to individuals' personal details.
He remains concerned to ensure that effective safeguards
are in place to minimise information risk which can increase if
developments in surveillance and greater exploitation of personal
information go unchecked. He believes that whilst there have been
welcome developments such as strengthening the data protection
regime, greater scrutiny of surveillance developments and greater
questioning as to whether existing developments go too far, there
are still opportunities available to strengthen the safeguards
that will help ensure that we do not end up with a society where
citizen surveillance and inadequate protections become the norm.
The Commissioner believes that there is still greater
scope for the adoption of a 'privacy by design' approach. Using
privacy impact assessments and then adopting privacy enhancing
technologies can do much to ensure that information risk is identified
and then minimised. There is a worrying trend particularly with
those who provide on-line services not to have thought through
the privacy implications of their activities and given users robust
privacy settings as a default.
On a more positive note it is clear that there is
an increasing appetite for privacy friendly techniques in areas
such as identity management, that help minimise personal data
and put individuals increasingly in control of their information.
Similarly there are privacy enhancing technologies which minimise
access to identifying particulars and other personal information
whilst still delivering the benefits sought in the first place.
Whilst the Commissioner has worked hard to promote these, including
developing a business case for adopting proactive privacy protection
entitled 'The Privacy Dividend'', much more still needs to be
done. Adoption of proactive privacy safeguards could be much improved
and innovation in the protection of personal information continues
to lag behind the motivation and capability to exploit it. The
Commissioner will be continuing to work to ensure that more is
done to improve the current situation.
The report points towards particular gaps in the
way developments are scrutinised not only during the process of
debate and analysis but also in post implementation scrutiny.
A number of examples in the report point to the use of powers
granted to the Government and public bodies by Parliament to deal
with pressing public policy concerns being used over time to address
less pressing matters in a disproportionate way.
The Commissioner recognises that the parliamentary
process is designed to provide thorough scrutiny of new measures
but that this can be hampered when the assertions of those either
for or against surveillance related developments are presented
with little concrete evidence established on which to base decisions.
The Commissioner suggests that imposing a requirement on Government
to conduct a privacy impact assessment when bringing forward any
law which engages concerns about increased collection and exploitation
of personal details of citizens may aid parliamentary scrutiny.
Those who make claims and counterclaims would have to back up
their assertions with facts and evidence enabling conclusions
to be drawn on whether the proposed measures are effective and
proportionate when set against the impact on personal privacy.
This assessment would be submitted as part of the scrutiny of
such legislation. Providing the Commissioner with a formal opportunity
to provide Parliamentarians with a reasoned opinion during the
passage of legislation that impacts on information rights is a
further possible option.
The Commissioner understands that on some occasions
there may be emerging and pressing matters where the full scale
of a problem and the impact of the proposed solution is difficult
to judge or scrutinise. Where potentially far reaching measures
are proposed which involve the collection, use or exploitation
of personal information for new or different purposes then a form
of enhanced post legislative scrutiny is required.
Parliamentary Committees already play an invaluable
role in holding the Government and others to account for the use
of powers granted to them. However this process is inevitably
inconsistent as Parliamentary committees struggle under the weight
of business and the range of matters which they must address.
The Commissioner proposes a more formal and consistent approach
to ensuring post legislative scrutiny. Legislation engaging significant
privacy concerns should include on the face of it a requirement
on the Government to report back to Parliament on how the measures
have been deployed including evidence of the extent to which the
expected benefits and possible risks have been realised in practice
and the continued need for the measures in question. In certain
cases consideration should be given to the inclusion of 'sunset
clauses' which would cause legislation to lapse unless renewed
on the basis of evidence of continuing value.
It is clear that where difficult issues affecting
the balance between matters such as security, crime prevention
and detection, transparency and privacy are concerned Parliament
has a central role to play in ensuring proper debate and scrutiny,
particularly in the face of strongly argued assertions by proponents
and opponents. The proposals suggested by the Commissioner for
compulsory privacy impact assessments during the passage of legislation
backed up by effective post legislative scrutiny once the legislation
is being used in practice are aimed at assisting parliamentarians
in their essential tasks.
The Surveillance Society
An update report on developments since the 2006 Report
on the Surveillance Society by members of the Surveillance
Studies Network
Charles Raab, Kirstie Ball, Steve Graham, David Lyon,
David Murakami Wood, Clive Norris
EXECUTIVE SUMMARY
This report selectively describes developments in
surveillance since the publication of the Report on the Surveillance
Society written by members of the Surveillance Studies Network
(SSN) for the ICO in 2006. It comments on trends, new practices,
and the regulatory landscape of responses and prospects.
The warning that the United Kingdom may be 'sleepwalking
into a surveillance society'—or that one already exists,
requiring limitation and regulation—is no less cogent in
2010 than it was several years ago. It is not being suggested
that the UK is a 'police state' or that there are surveillance
conspiracies afoot against the public. Neither the 2006 report
nor this one supports such an assumption, and evidence for it
is lacking. Much of what is taken to be surveillance is done for
benign reasons and has beneficial effects on individuals and society.
But much surveillance also goes beyond the limits of what is tolerable
in a society based on the rule of law and human rights, one of
which is the right to privacy.
Surveillance involves the use of techniques to gather
and use information about individuals—their personal details,
their movements and social contacts, their habits and behaviour,
their communication—in order to make administrative or business
decisions that affect their life chances and those of the groups
or categories into which they are construed to fall. Surveillance
has ancient roots in society and the state, but in today's world
it engages the latest technologies to gather more data, to analyse
it in minute detail, and to disclose and share it rapidly with
a wide number of others, both within the UK and across national
boundaries.
Since 2006, visual, covert, database and other forms
of surveillance have proceeded apace, with regulators working
hard to apply their often-limited powers or to anticipate and
control the next developments. Surveillance practices are often
surreptitious, non-transparent, and unaccountable. The aims, motives
and procedures of those who collect and use personal information
are often unclear, and therefore difficult to regulate, even when
they fall within the scope of the law.
Some commentators have noted the 'hyperbolic fog'
that surrounds debate around one of the databases that have been
in the spotlight in recent years—a ratcheting-up of claims
and counter-claims by critics and champions of surveillance that
does a disservice to public understanding and political or regulatory
effectiveness. Parliamentary oversight as well as the work of
statutory regulators requires less exaggeration of the benefits
and dangers of surveillance, and a better grounding in knowledge
of what the state of play is regarding surveillance and what is
likely to occur in future.
For convenience, this report marshals evidence of
trends and developments in UK surveillance under three main but
overlapping headings:
- Information collection
- Information processing
- Information dissemination
It looks briefly but indicatively at information
collection in terms of overt and covert surveillance, the proliferation
of government databases, the burgeoning use of closed-circuit
television (CCTV) and the increasing employment of Automatic Number
Plate Recognition (ANPR) in ways that 'creep' beyond their original
intended function. Although they might become issues largely for
the future, it considers the use of unmanned drones and body scanning
to detect. The report also looks into the collection of data in
relation to border controls and the monitoring of employees in
the workplace.
Information processing is not clearly separate from
collection, and is highlighted by techniques of data combination
and analysis, and by data sharing. The use of personal data gathered
by ANPR in controlling protest activities is given as an example
of the public-order application of data processing, and the increasing
use of geodemographic tools (the combination of digital mapping
technologies with individual or aggregated personal data) shows
how people's spatial movements and locations are tracked, monitored,
and represented by data. The processing of information for public-service
administration is described, involving the sorting of populations
into categories. Ethnic targeting features in some of the ways
in which data are collected and processed, and—in the private
sector, but not confined to it—call centres illustrate the
issues involved in the processing of data for certain activities.
The report considers information dissemination in
terms of the broader communication or disclosure of personal information
to a wide audience. The sharing of data between organisations
has become a main means for this, and data breaches have also
resulted in potentially widespread dissemination through unintended
lapses in care and security. The huge growth in social networking
is the most dramatic example of recent years, and has generated
new and difficult privacy and data-protection issues on a global
scale that pose a challenge to national regulators and law.
Turning to the implications of these aspects and
examples of surveillance, and reflected in the trends of recent
years, the report comments upon problems and issues regarding:
- Privacy, ethics and human rights
- 'Function creep'
- Transparency and accountability
- Blurring of the public and the private
- Unintended consequences
There are a host of privacy and human-rights issues
involved in, for instance, techniques for analysing data about
individuals, the sharing of data among organisations—often
for undeclared and unconsented purposes—and the flow of
data across national boundaries. 'Function creep' has been much
commented upon, involving new uses for technologies or for data
beyond what was originally envisaged or legitimated: for example,
certain uses of ANPR and of databases collected ostensibly—and
possibly under legislation—for a defined purpose. Such practices,
as well as the sharing of data, make transparency and accountability
very difficult, not only for regulators but for the public who
are asking increasingly about what happens to their information.
The public and private sectors are no longer discretely bounded,
as data flows across them between the state and private companies
in complex pathways. The distinction between private and public
activities are also blurred, with one result being unintended
consequences of practices that people engage in, for example exposing
their 'private' and intimate social networking activities to wider
audiences. There are serious privacy and ethical dilemmas in these
trends.
Finally, the report reviews regulatory developments
and problems, focusing on challenges and responses in recent years,
in which the UK has seen a plethora of parliamentary and other
reports about surveillance and its implications for privacy and
other social values, and has witnessed massive data breaches as
well as other violations of data protection principles and information
rights. Responses have featured innovations such as Privacy Impact
Assessment, the encouragement of better data handling and more
regulated systems for sharing data, stronger ICO powers and penalties,
and more effective codes of practice. But the regulatory future
is hard to discern in detail, including the likely revision of
the European Data Protection Directive and consequent changes
to UK law, and the efforts of the new Government to limit the
perceived excesses of the 'surveillance society'.
The report finishes by canvassing some proposals
that have been made elsewhere for strengthening, and integrating
better, the regulatory forces of official agencies and civil-society
as well, and for increasing the international efforts to limit
surveillance and to protect privacy and related values. Whether
these will be necessary or sufficient is a matter for discussion.
BACKGROUND
In 2006, the Report on the Surveillance Society,[2]
produced by members of the Surveillance Studies Network (SSN)
for the ICO, argued that we are already living in a surveillance
society. The report defined the surveillance society as one that
is organised and structured using surveillance-based techniques.
There was no suggestion, then or now, that the United Kingdom
was or is becoming a 'police state', or a society under total
and malevolent control, as some commentators may assert. The report
stated that to be under surveillance meant having information
about one's movements and activities recorded by technologies,
on behalf of the organisations and governments that structure
the society. The report showed how this information is then sorted,
sifted and categorised, and used as a basis for decisions that
affect our life chances. Such decisions concern our entitlement
and access to benefits, work, products, services, and criminal
justice. They concern our health and well-being, and our movement
through public and private spaces: in other words, most of what
is regarded as our 'everyday' life.
Amongst the indicators, the report noted:
- The increasing ubiquity of
video surveillance cameras, and automatic systems for number plate
(and face) recognition
- Electronic tagging of those on probation
- DNA and many other databases, and 'precautionary'
intervention
- The need to prove identity, for benefits, healthcare
and so on, including the proposed new system of biometric ID cards
linked to a central database of personal information
- Proposals for biometric passports and surveillance
at borders
- The use of multiple surveillance systems in schools
- Consumer surveillance, the collection and sale
of data, and the use of these data to provide differential levels
of service
- The monitoring of telephone and Internet communications
by intelligence agencies
- The monitoring of performance in the workplace.
The SSN argued that this society is the sum total
of many different technological changes, policy decisions, and
social developments. Some of it was shown to be essential for
providing the services we need, for example, health, social security,
and education, but some were considered to be unjustified, intrusive
and oppressive. The report noted that until that point, there
had been very little public debate about surveillance. At the
same time, it was estimated that the global surveillance industry
was worth almost 1 trillion US dollars, covering a massive range
of goods and services from military equipment through high street
CCTV to smart cards.
It was stated very specifically that this was not
a conspiracy or always a matter of deliberate policy, but the
result of a confluence of many different trends, and the report
noted that the intention behind many surveillance systems was
benign. Nevertheless it was argued that this did not justify apathy
or a lack of scrutiny and regulation, and that understanding the
often unintentional controlling effects of surveillance and the
impacts they have on our personal lives and on society was crucial.
This analysis was placed in a social context that
had become increasingly concerned with risks and dangers (both
to security and to profit), rather than positive social goals.
Thinking of more and more everyday situations in terms of 'risk'
leads to what was previously exceptional security becoming normal,
and to many unintended consequences that generate inequalities
of access and opportunity, and distinctions of class, race, gender,
geography and citizenship. These discriminations are not only
made worse but also fixed into the way all everyday decisions
are made.
One of the biggest effects of surveillance processes
and practices is to create a world where we are not really trusted.
Surveillance, it was argued, fosters suspicion, whether this is
in the private sector—with the employer who installs keystroke
monitors at workstations, or tracking devices in service vehicles—or
in state services, where the welfare benefits administrator seeking
evidence of double-dipping or soliciting tip-offs on a possible
'spouse-in-the-house' is saying she does not trust her clients.
Even at the personal level, there were an increasing number of
technologies designed for parental use in checking on children's
activities. Trust, therefore, as much as privacy, was the major
casualty of the surveillance society.
But at the same time, it was shown that the decline
of trust creates a further demand for more certainty about those
others we no longer trust: about backgrounds, identities, interests,
motives, and even likely future behaviour. This demand places
a high priority on the collection and analysis of personal information,
storing it in large databases with increasing interaction and
sharing of data. The report asked whether we had become so hypnotised
by the 'need' to find high technology solutions to crime, terrorism,
fraud and many other problems that we forget to ask whether these
solutions even work in the ways they were intended, let alone
whether they were appropriate in a wider social context, or might
have consequential side-effects, and whether there might be other,
non-technological or less invasive answers. The report did not
discount that possibility that people may want to live in a surveillance
society, but if that was the case, it was argued that it had to
be something decided in full understanding, with our eyes open
and not in our sleep.
All these themes and analyses that were explored
are at least as relevant in 2010 as they were in 2006. This much
briefer Update Report focuses on the key thematic developments
since the 2006 report. These include:
- the increasing blurring of
private/public sector boundaries in collecting and processing
surveillance data
- the increasing nodes in the system, both public
and private, where information is collected, processed and shared
- the application of more sophisticated analytics
for data-mining and profiling, leading to enhanced mechanisms
to privilege, prioritise and exclude
- the decreasing visibility of surveillance processes,
which is paralleled by an increase in their social consequences.
Research for this report was guided by some key questions
that remain pertinent today:
- are there new applications
of technology?
- are there new instances of 'function creep'?
- have new unintended consequences been produced?
- have there been new instances of information-sharing
across public/private boundaries?
- have new forms of analysis been applied to personal
data?
- whose lives have been enabled and constrained,
and how has this changed?
- has public accountability for surveillance practices
changed?
- are there new challenges to the regulation and
limitation of surveillance?
- have the recommendations of parliamentary reports
been satisfactorily implemented?
- how have the possibilities and practices of public
and parliamentary scrutiny changed?
- are the surveillance and regulatory trends of
recent years likely to continue?
Documenting and analysing the impact of these developments
forms the core of the report, with particular attention to their
implications and the challenges they pose for regulatory regimes.
Main Areas of Surveillance, 2006-10
The current report concentrates on a small number
of areas and recent trends in surveillance, but seen in terms
of the processes they illustrate, and the issues to which
these processes give rise, before the penultimate section considers
the implications of these processes and issues for policy and
regulation.
Three types of activity that can present privacy
problems and lead to regulatory challenges and responses are identified.
These are the collection, processing and dissemination
of information.[3]
The surveillance processes highlighted are described
under these headings, although in many cases the examples involve
more than one of these kinds of activity. It should be borne in
mind that there are also beneficial purposes served by activities
in these groups, but in focusing on the potential regulatory problems,
attention must be concentrated on the more disturbing effects
on individuals and society. It can also be argued that the balance
between the more positive and caring aspects of surveillance and
those that are more harmful has shifted even more towards the
latter in recent years. The examples described in each of the
three subsections give rise to a number of implications and issues
to be dealt with by public policy and regulation. Comments upon
these issues are given later in the report.
Trends in Surveillance
Information Collection
The collection of personal information has become
increasingly central to the activities of organisations in both
the public and private sectors. Many large databases of personal
information have been created on segments of the population, and
online collections of data in social networking, commercial and
governmental contexts are now common features of contemporary
life in the UK. The covert or overt surveillance of the population,
especially in public places, along with tracking physical movement
and behaviour, overlap with database collections. The 2006 report
illustrated the prevalence of these activities; since then, we
have not until very recently seen any significant decline in the
practices, nor any major increase in regulation. This report touches
on, but does not discuss at length or systematically the increase
in surveillance operations conducted by police and other public
authorities under the Regulation of Investigatory Powers Act (RIPA)
2000. This has attracted criticism, perhaps most notably in the
case of its use in fairly trivial circumstances by local authorities,
whose use of RIPA powers—not envisaged in the original legislation—has
proliferated, attracting public and parliamentary criticism.[4]
Other matters of serious concern include the procedures for authorisation
of surveillance operations, and the fragmented system of oversight
through Commissioners, both of which have cast doubt upon the
effectiveness of surveillance regulation under one of its main
legitimising statutes.
However, as we shall note, the recent change of Government
has now led to some significant rolling back in some areas of
state data collection, and further changes are promised, although
in a number of cases are far from certain to be put in place.
This should not, however, distract attention from those areas
that remain unaffected, nor from the growing importance of private
sector data collection.
GOVERNMENT DATABASES
Public services rely heavily on the collection and
further processing of large amounts of personal data, increasingly
so because of the trend towards anticipatory, proactive and predictive
policy-making and implementation. In 2006, the SSN reported that
the use of personal information for public services is a form
of surveillance that poses threats to privacy and other social
values, even though it serves beneficial purposes: saving lives,
protecting the vulnerable, and making public services more efficient
and effective.[5] On the
other hand, because data collection is so ubiquitous, the protection
of personal information and the restriction of database surveillance
is made at once more difficult and more necessary. There is little
in the experience of the past four years that would cause a serious
questioning of that overview.
In 2008, the Government's written evidence to the
House of Lords Constitution Committee's surveillance inquiry described
a large number of policies, practices and systems for personal
data collection, data sharing and surveillance in central government
departments and agencies.[6]
This report can only deal with a few of these; for example, it
leaves on one side law-enforcement databases and the NHS IT development.
In terms of databases, the blurring of the boundaries of the public,
private and voluntary sectors continues; the aim of 'joined-up'
government—transformed and enabled by technology[7]—has
not abated, although the pace is often halting and in certain
sectors, such as health, enormous IT implementation difficulties
persist. Government still pursues policies based on 'better safe
than sorry' premises that require large amounts of personal data
to identify and profile those at risk of harm to themselves or
to others. Parliamentary scrutiny and privacy safeguards lag behind,
and there is insufficient independent assessment of necessity
and proportionality.
It is impossible to say how many databases there
are in the public sector, in part because the term 'database'
is not a precise one. It cannot be affirmed that the judgments
and legality ratings concerning 46 UK state databases made in
a prominent recent review[8]
are anchored in reliable methodology yielding sound evidence,
and those opinions are therefore not endorsed in the present report;
in addition, the previous Government's rebuttal is to be noted.[9]
Nevertheless, that study of the 'database state' reflects wider
concerns about the resort to database 'solutions' to social or
policy problems, and served to bring this trend into wider public
awareness and debate.
For several years following the 2006 report, government's
propensity to process ever more data continued with, for example,
the National Identity Register (NIR), the controversial database
that formed the heart of the identity cards scheme (2006). The
Government elected in 2010 has, however, announced the demise
of identity cards for UK citizens and the destruction of the NIR,
although questions remain about how its data, which is not unique
to the NIR as such and which forms part of the life-blood of state
administration, will be used. There are concerns on grounds of
discrimination about the continuation of identity cards for non-citizens
and the use of data collected for supplying these. Moreover, surveillance
practices with respect to the identification and verification
of individuals and their claims persists across government, even
in the absence of a discrete 'identity card'. The policy aim to
transform government and its services through the use of information
technology, especially online, is likely to generate continuing
problems concerning data protection, including data security,
and possible discriminatory effects, despite the professed reforms
in data handling that followed the rash of data breaches in 2007
and after.
Another example, still in formation, is the Vetting
and Barring Scheme (VBS) managed by the Independent Safeguarding
Authority (ISA), established in England and Wales and coming on
stream from 2010 to 2015.[10]
The Scheme covers those who come into regular contact with children
and vulnerable adults and requires such paid or voluntary workers,
with some categorical exceptions, to register with the ISA, with
the application and monitoring processes being performed by the
Criminal Records Bureau, which already operates criminal records
checks. There will be lists of those who are barred from contact
with children and vulnerable adults. ISA decisions will be based
on information from the police as well as referrals from employers
and regulatory or other agencies. In addition to information on
offences, convictions and cautions, evidence of 'inappropriate
behaviour' or of behaviour likely to result in harm will be considered.
The ISA said that '[r]eferral information, such as allegations,
will never lead to automatic inclusion on the ISA Barred Lists.
Before a barring decision is made, the individual is given the
information on which the decision is based and the opportunity
to explain their case.'
This new system was established following the recommendation
in the 2004 Bichard Report on the Soham murders. However, by saying
that the vetting scheme 'is about making sure we can stop that
very rare risk, because if it led to harm, the harm could be devastating',
the previous Government revealed an approach to risk that established
an elaborate system to guard against events that, they admitted,
were highly improbable. This raises concerns about the disproportionality
of a Scheme that, according to some, reverses the assumption of
innocence regarding the individual and may lead to decisions being
influenced by 'soft' information. The previous Government scaled
back its scope following criticism, and the current Government
has announced that it will 'review the criminal records and vetting
and barring regime and scale it back to common sense levels'.[11]
At the time of writing, further details had not been made available,
although it is to be hoped that a revised Scheme will accord better
with the spirit of data protection and human rights. A great deal
will depend on how the Scheme is implemented, including the transparency
of decision-making and ensuring rigorous safeguards for the data
involved in the vetting process. The ICO has in the past not been
convinced that all the data protection implications of VBS had
been resolved, but 'received assurances that the scheme will engage
with the ICO in constructive dialogue'.[12]
A further example is the database on all children
in England and Wales up to age 18, on which the Report on the
Surveillance Society commented in 2006, and which was renamed
'ContactPoint'. This is intended to improve and speed up contact
between professionals in children's services across England and
Wales. Implementation began in local authorities late in 2009,
following a period of limited early adoption.[13]
It may be too soon to evaluate its success[14]
or its avoidance of the potential privacy and human rights dangers
highlighted by its many critics in NGOs and parliament. These
include accessibility by too many persons (reportedly, over 330,000),
undue interference with family privacy, ignoring children's rights,
and violation of European Convention rights under Article 8.[15]
ContactPoint raises privacy concerns over the storage
of sensitive data with no effective opt-out, lack of security,
and potential relationship to the NIR.[16]
On the other hand, the previous Government robustly defended ContactPoint
and rejected such criticism in detail as vague and unfounded.[17]
In this 'hyperbolic fog'[18]
of criticism and defence, which stifles genuine debate about these
issues and contributes little to public understanding and sensible
policy-making, it can still be argued that this and other large
databases are likely to pose threats that require vigilant regulatory
oversight. The new Government has pledged seriously to reassess
ContactPoint but, again, details about this have not been announced.
There remain considerable pressures from the child-protection
and care community for some form of collected data on children,
whether gathered centrally or not, and even if it is confined
to only certain categories of children—itself a form of
social sorting and discrimination, albeit benevolently intentioned.
Therefore, it would be premature to consider that the demise of
ContactPoint itself will reduce concerns about the collection
and processing of often sensitive and 'soft' data on children.
A final example is the National DNA Database (NDNAD),
which has caused concern because of its collection and retention
of millions of samples taken from persons over ten years of age
and from crime scenes, including the DNA of those who were never
charged or convicted of a recordable offence. Scotland and Northern
Ireland have separate databases operating under different retention
rules. In proportionate terms, the NDNAD is the largest of its
kind in the world, containing DNA profiles of more than 7 per
cent of the UK population. England and Wales are unique amongst
Member States of the European Union in systematically retaining
the profiles or samples of individuals who have not been convicted
of a crime.
Government and the police, as well as critical groups,
have seen the NDNAD as an essential tool in law enforcement, but
many—including parliamentary committees— have raised
serious concerns, especially with the retention of DNA profiles
of large numbers of innocent people who should arguably be treated
as though they had never been arrested. In December 2008, the
European Court of Human Rights (ECtHR) delivered its judgement
in the case of S. and Marper v. the United Kingdom, a case
that was brought by two individuals, one of whom had been charged
with a recordable offence but was subsequently acquitted, and
the other charged but saw his case discontinued. Both had requested
that their DNA be removed from the NDNAD. The ECtHR ruled that
the Government's policy breached Article 8 of the European Convention
on Human Rights. The Government then resisted complying with the
Court's ruling. The new Government has now committed itself to
implementing the ruling along the lines of the Scottish model
of deletions and much more limited retention periods.
Two other NDNAD issues remain important. The first
concerns possible discrimination, in that some groups are over-represented
on the database in relation to the general population, in part
related to stop-and-search policies in policing that disproportionately
target black and other ethnic minority persons. The second is
the implications in the development of familial searching techniques,
whereby offenders who do not have a profile on the database can
be traced through a close relative who does. This of course represents
a significant expansion of the reach of the database, which started
as one of offenders, then of suspects, and now covers the relatives
of those on the database.[19]
VISUAL SURVEILLANCE THROUGH CCTV AND ANPR
Visual surveillance through CCTV is perhaps the image
most people have in mind as denoting what 'surveillance' means.
The use of public-space CCTV has become even more widespread for
various purposes associated with the prevention and detection
of crime and the maintenance of public order. Yet its relative
ineffectiveness in achieving its objectives, despite its public
and political support, has remained a remarkable anomaly.[20]
Recognition of the need for improvement in CCTV's ability to fulfil
functional expectations came with the promulgation of a 'new strategy'
in 2007 by the Home Office and the Association of Chief Police
Officers (ACPO).[21]
This strategy was aimed at overcoming many of the technical and
operational flaws of CCTV schemes, and at improving standards,
quality and training.
CCTV has also continued to find new applications.
In September, 2006, Middlesbrough police announced that they had
fitted 7 of their 158 CCTV cameras with loud speakers enabling
control-room staff to 'talk' to those they were monitoring. The
aim of the system was to 'shame' low-level offenders into conformity.[22]
In April, 2007 talking CCTV was extended to 12 other areas though
the use of a £500,000 grant from the Government's Respect programme.[23]
In 2007, the Home Office initiated a £3 million national
roll-out of body-worn CCTV to police forces[24]
after a trial in Plymouth.[25]
CCTV has also found increasing use in less obvious law-enforcement
roles. In 2006, the Department for Environment, Food and Rural
Affairs commissioned research to produce good-practice guidelines
for the local authority management of fly-tipping,[26]
the report stressing CCTV's utility in prosecutions. In particular,
it recommended that serious consideration be given to the use
of covert CCTV, although the good-practice guidance was silent
on how to ensure compliance with RIPA.[27]
Moreover, the use of covert CCTV by local authorities to tackle
a range of low-level offences from parking to littering to defying
the smoking ban have led to calls for local authorities to be
stripped of their powers under RIPA. The new Government intends
to ban their use of RIPA powers 'unless they are signed off by
a magistrate and required for stopping serious crime'.[28]
That CCTV has become a routine feature of most urban
public space landscapes now seems to be taken for granted. However,
police and Government attempts to impose mandatory CCTV requirements
on the private sector have run in to some resistance since 2006.
In March, 2009 it was reported that the Metropolitan Police had
insisted to a public-house landlord in Islington that they would
oppose his licence application unless he installed CCTV. The landlord
claimed it was an infringement of his customers' civil liberties,
and after the ICO intervened the police backed down. A number
of other police forces have tried to emulate Islington, arguing
that landlords believe cameras improve security in pubs, although
it is the licensing authority, not the police, who make the final
decision. The previous Government proposed that CCTV systems should
be installed in licensed premises in positions dictated by the
police, with CCTV footage being kept for 28 days and made available
on request to an authorised person or a constable. The ICO argued
that, while surveillance in a specific pub can combat specific
problems of bad behaviour, to hard-wire such blanket coverage
where there has been no history of criminal activity is likely
to breach data protection requirements.[29]
In the end, it appears to have been economic rather than data
protection considerations which laid rest to these plans: the
Government's consultation revealed strong opposition from the
industry on financial grounds,[30]
and the proposal was withdrawn.
Video surveillance has also expanded in state institutions.
In particular, the use of CCTV in schools has migrated from perimeter
security and access control to monitoring pupil behaviour in public
areas such as in corridors and playgrounds, and to more private
realms such as changing rooms and toilets.[31]
Furthermore, a recent survey by the Association of Teachers and
Lecturers found that 7 per cent of teachers reported CCTV being
used to monitor classrooms, raising fears that CCTV would be used
to monitor teacher performance as well as pupil behaviour.[32]
As the function of school CCTV has changed, it is apparent that
some schools have not understood their new regulatory responsibilities.[33]
These issues are only likely to intensify with new uses for cameras
in education, such as the remote-operated web-cams on laptops
provided for pupils' home use in the USA.[34]
Similar practices are more likely in the UK if private sector
management of state schools spreads, as the Government intends.[35]
The growth in one form of visual surveillance aimed
at data collection has attracted increasing attention: Automatic
Number Plate Recognition (ANPR). ANPR illustrates the progress
of data-enhanced policing, using new technological tools to move
from being an 'add-on' project 'to becoming a mainstream policing
tool, integrated into police force strategies and policy, tactics,
systems, processes, training and baseline funding'.[36]
However, within the private sector, other uses are flourishing,
illustrating the collection of information but information processing
and sharing as well. The Driver and Vehicle Licensing Agency (DVLA)
does not just supply information to the police, but also to a
variety of accredited trade associations.[37]
In 2007, it was reported that the DVLA was selling driver details
to 157 firms at a charge of £2.50 per enquiry, making the
details of millions of drivers available to bailiffs, credit-control
companies, debt collectors, property managers, leisure centres,
solicitors and a large financial services firm.[38]
Since 2005, the DVLA is said to have raised an estimated £44
million by selling details on 18 million registrations.[39]
ANPR systems in privately owned car parks are increasingly
linked to the DVLA database and used to enforce parking rules
and restrictions through the use of a Parking Charge Notice (PCN),
akin to a fine, for breaches to the regulations, such as overstaying
or parking in a restricted area. The DVLA database is used to
provide the name and address of the registered keeper so the PCN
can be sent to their home address;[40]
if not complied with, civil action is undertaken with bailiffs
potentially being engaged to enforce payment. The possibility
that DVLA data could be commercially exploited through more novel
uses of ANPR technology was recently reported. A prominent motor-oil
company's advertising campaign included billboards on five major
London routes. Roadside cameras recorded number plates before
flashing their registration onto screens and indicating the grade
of oil recommended for the vehicle. To enable this precision,
another firm had apparently been used to obtain vehicle data,
believed to have contained most of the 34 million-strong driver
details held by the DVLA. While the DVLA had neither sold its
data to the oil company nor given permission for its use in this
way—which would contravene the prohibition of the use of
registration numbers for marketing purposes—it appears that
data had been supplied to the third-party company by a firm to
which DVLA does sell data. When the DVLA complained, the advertising
campaign was abandoned.[41]
These examples provide evidence of the process of 'function creep',
as is pointed out later.
In 2005 ACPO published their National ANPR Strategy,
'Denying Criminals the Use of the Roads 2005/2008'. The strategy
is underpinned by the creation of new data flows between cameras
and the ANPR database, and between the latter and existing databases.
The strategy consisted of four key components, the setting up
of a national network of ANPR-capable cameras; the creation of
dedicated force intercept teams; real time linkages with the DVLA
database of registered keepers of motor vehicles and to the databases
contained on the Police National Computer (PNC) (the system is
also linked to local force databases, the Motor Insurance Database
and counter terrorism databases); and the creation of a National
ANPR Data Centre to house a database capable of storing 50 million
ANPR 'reads' per day.[42]
The main aims of ANPR systems extend from the apprehension
of owners of untaxed and uninsured vehicles, and car thieves,
to the wider one of 'targeting criminals through their use of
the roads'. In so doing, the movements of all vehicles, not only
those involved in criminal activity, are tracked. There is now
a national network of some 10,000 ANPR-enabled cameras installed
in the UK, as well as intercept units in all police forces, a
Data Centre lodging some 10-14 million ANPR 'reads' per day,[43]
and real-time police access to all ANPR reads from Transport for
London's (TfL) Congestion Charge scheme, allowing them to track
all vehicles entering central London. With the advent of vehicle-borne
terrorist activity, the Home Secretary in 2007 ordered an exemption
of TfL from parts of the Data Protection Act. While the TfL data
can only be used currently for issues relating to national security,[44]
the Home Secretary did not rule out the possibility of police
using the data for other purposes in future.[45]
Further uses of ANPR data are highlighted later on.
UNMANNED DRONES
Recent developments in national security technologies—unmanned
drones and body scanners—provide further examples of novel
forms of information collection. These are not yet significantly
deployed in the UK, but if they were more fully implemented in
future, they would mount important challenges for regulation and
surveillance control.
The deployment of unmanned helicopter drones (Micro-Unmanned
Aerial Vehicles, Micro-UAVs, or MAVs) in UK civilian airspace
for policing purposes has begun with the recent trial conducted
by Merseyside Police. Derived from military models now widely
used in counterinsurgency operations, drones are equipped with
wirelessly-connected digital CCTV systems that can record extremely
high-resolution images, in the visible and infra-red spectrums,
from heights of 500m. At 100m hovering height, the drone's small
size and battery power means that it is rarely noticed from the
ground. It is quite probable that the use of drones will become
more commonplace in covert surveillance, and will feature in the
policing of the 2012 Olympic Games. The South Coast Partnership
(SCP), a project led by Kent Police involving five other police
forces in conjunction with BAe Systems, plan to pilot the use
of drones with a wide range of potential uses. The Guardian's
Freedom of Information requests have revealed that the list of
potential applications includes addressing 'fly-posting, fly-tipping,
abandoned vehicles, abnormal loads, waste management' and '[detecting]
theft from cash machines, preventing theft of tractors and monitoring
antisocial driving'.[46]
BODY SCANNING
Body scanning has begun to be used in civilian airports
in the UK. Full body scanners fall into two main types: backscatter
machines that use a low-intensity X-ray beam to construct a two-dimensional
image of the body, and millimetre-wave machines, that use non-ionising
radio frequency energy to detect energy radiated from the body
as a means to construct a 3-dimensional image. Heralded as a means
to complement or replace walk-through X-ray and physical pat-down
searches, their advocates argue that such scanners have a far
superior ability to detect threatening objects held in or about
the person.
Responses amongst civil liberties advocates and information
commissioners centre on the technology's alleged threats to personal
and medical privacy and individual dignity, as well as possibilities
of misuse. For example, in March 2010, a 'first instance harassment
warning' was issued to a 25-year old male security worker at Heathrow,
who made lewd comments about a co-worker who had mistakenly passed
the scanner area.[47]
BORDER CONTROLS
More conventional data collection, as well as analysis
and dissemination, is in use in the e-Borders programme, currently
being implemented by the UK Border Agency (UKBA) in the Home Office.
The programme's aim is to collect and analyse all passenger, service
and crew data from air, sea and rail operators that provide services
into or out of the UK. The programme relies on the transfer of
passenger name record (PNR) and passport data collected by private
sector carriers—charter carriers just have to provide passport
information—to the UKBA's data warehouse between 24 hours
and 30 minutes in advance of travel. There, all data are checked
against watch lists, and on certain routes, travel patterns are
subject to profiles or 'rules based targeting' to identify persons
suspected of being involved in dangerous activities (e.g. drug
smuggling). Following analysis, 'risk flags' are attached to particular
names, and the border agent then decides whether to alert law
enforcement agencies or immigration officers to their presence
so they can take further action, which could include the individual
being questioned or detained. The information is then held for
five years in an active database and a further five years in an
archive with stricter access controls and access on a case-by-case
basis. Since 2005, according to a Home Office Minister in 2009,
137 million journeys have reportedly been logged, and 4,700 arrests
made.[48]
The success of e-Borders is premised on the collection
of all information relating to all journeys made into and out
of the UK. It has been difficult to implement for two reasons.
The first concerns infrastructural systems difficulties and costs
surrounding the transfer of data from private sector carriers
to UKBA, and the second concerns the ethical implications of total
data collection. Whilst significant industry investment has overcome
the practical problem of ensuring that traveller data flow from
the private sector to government, including investment upstream
data capture and transfer to UKBA for advance clearance, the outcome
of privacy challenges from the EU is less certain. Pending resolution
of the legal issues, Eurostar and the ferry companies are still
consulting with UKBA over their involvement in the programme.[49]
WORKPLACE MONITORING
Surveillance practices are part of everyday organisational
life. Computer-based employee performance monitoring, the tracking
of mobile employees through GPS applications in their phones,
the use of mystery shoppers and the monitoring of internet use
in the workplace are common examples. Recent developments have
indicated some new trends that are noteworthy. The first is an
increase in the use of CCTV in the workplace. CCTV and other surveillance
measures have been recently identified as the solution to fraud
and dishonesty at work that costs UK businesses upwards of £2
billion per year.[50]
Despite the proliferation of CCTV policies, complaints to the
ICO about CCTV abuses have risen in the last year. School teachers,
in particular, have found that CCTV installed to control pupil
behaviour has been used to monitor their teaching performance.[51]
The mobile phone now sports a range of different
applications and many support GPS mapping functions, which provide
extremely useful navigational aids for their users. Others support
accelerometers, which analyse the speed and direction of the movement
of the mobile phone and can enable it to be used as a spirit level
or in a whole new range of gaming applications. However, both
these developments raise serious issues of function creep. The
networked capability of mobile phones coupled with GPS, illustrating
a form of geodemographics—the combination of digital mapping
technologies with individual or aggregated personal data, which
is discussed more extensively below—can now enable employers
to track the whereabouts of their employees to within a few metres
of accuracy, and the accelerometers can be used to monitor worker
performance. For instance, one Japanese company has developed
a management application to monitor worker performance though
exploiting the accelerometer's properties as a 'mobile phone strapped
to a cleaning worker's waist [that] can tell the difference between
actions performed such as scrubbing, sweeping, walking and even
emptying a rubbish bin'.[52]
While both these new developments may be seen as
providing useful management information, they represent both an
intensification of surveillance and a diminution of our normal
expectations of privacy. We discuss social networking under another
heading below. But there is also an interesting application of
networking information in the workplace setting. In 2009, the
software firm SAP unveiled its 'Social Network Analyzer'. According
to SAP blogger Timo Elliott, the system uses Web 2.0 and cloud
computing to integrate information from LinkedIn, Facebook and
other social networking sites to enable businesses to manage their
internal relationships.[53]
The aim of the system is to enable users to 'get to know' colleagues
in different parts of the organisational hierarchy, and to understand
their extended networks of contacts, based on new data flows.
Although this application can have benefits in terms of managing
the day-to-day detail of business meetings, its use for restructuring
may imply a role for it in dismissing staff. It also creates a
new layer of visibility for employees, by generating a tag cloud
based on their employees' interests and networks, drawn from social
networking data.
INFORMATION PROCESSING
Information processing describes the operations that
organisations perform on personal information beyond collection,
practices often known as 'dataveillance', data mining, or Knowledge
Discovery in Databases (KDD). In practice—as has been shown
above in several examples of information collection—there
is no sharp break between these phases, but the problems are somewhat
distinct. We are aware that 'data processing', in the terms of
data protection legislation, describes a 'cradle-to-grave' arc
as far as personal information is concerned, from gathering to
destruction. However, the term 'processing' is used in this report
in a more limited and perhaps conventional sense to focus upon
certain prominent activities in the public and private sectors,
where personal information is analysed, combined, and shared.
Since 2006 the stakes have been raised around data flows as the
commercial and governmental sectors have sought to harness the
potential of personal data, with attempts to apply a data 'silver
bullet' to strategic ends in both commercial and governmental
settings.
DATA COMBINATION AND ANALYSIS
One of the most significant current trajectories
is towards the integration of diverse forms of data. For example,
whereas previously visual surveillance and dataveillance were
largely separate, the increase in visual data now exceeds the
capabilities of either human or conventional software analysis.
The development of recognition software for visual surveillance
has been advancing, but this is generally used in quite simple
ways: for example, in movement recognition, which is the basis
of behavioural recognition systems in CCTV. Large amounts of extant
visual surveillance data are being subjected to specific kinds
of recognition and context analysis to build up patterns that
can then be used for predictive or anticipatory actions. Crucial
here is the shift to analytics: 'intelligent' algorithms tasked
with identifying 'targets' worthy of further scrutiny amidst what
data analysts often term a 'tsunami' of data.
Data mining is also moving to new environments including—as
predicted in 2006—social networking and online gaming. The
2008 US Director of National Intelligence's Data Mining Report,
for example, includes reference to 'Project Reynard', which is
a seedling project to explore the emerging norms of such environments
and identify deviations that might indicate suspicious activity[54],
and such suggestions surfaced in publications leading up to a
possible revised Telecommunications Data Bill in the UK. There
have also been significant state investments in pioneering 'Web
2.0' analysis companies.[55]
ANPR AND PROTEST ACTIVITIES
The extension of ANPR systems has provided a major
spur to dataveillance. In July, 2009 the National Policing Improvement
Agency (NPIA) and ACPO issued advice to police forces entitled
'Practice Advice on the Management and Use of Automatic Number
Plate Recognition', which detailed the extensive data mining potential
of the new database. One example given in this Practice Advice
concerned the collection, under RIPA, of images of potentially
violent protesters, and loading them onto the central database.[56]
While the use of ANPR cameras to identify those who
are driving without insurance or road tax, or to monitor those
suspected of being involved in serious crime and disorder, may
not be seen as contentious, the extent to which it is used to
track, monitor, and profile 'legitimate' protesters is. For instance,
the National Public Order Intelligence Unit (NPOIU) is responsible
for providing intelligence on 'domestic extremists'[57]
and maintains a database of individuals identified as a potential
threat. How many people are registered on the database is secret,
but it is estimated to run into thousands.[58]
It is clear, however, that ANPR data are being used routinely
to track and monitor political protestors logged on the 'domestic
extremists' database, and that inclusion in the database is not
confined to those who propagate violence and disorder. Merely
being 'associated' with protests that have given rise to 'crime,
disorder and the deployment of significant resources' appears
to give the police sufficient justification to include such persons
in the database and subject them to extensive tracking and repeated
stops.[59] But even those
attending peaceful protests have also been logged: it was reported
that an IT manager with no criminal record was stopped 25 times
in fewer than three years after a 'protest' marker was placed
against his car following his attendance at a small and peaceful
protest against duck and pheasant shooting.[60]
This episode suggests that attendance at any political protest
gathering can now leave individuals open to extensive surveillance.
GEODEMOGRAPHICS
Since 2006, a number of new geodemographic products
and systems have come onto the market. Google StreetView, one
of the best known, now has almost total coverage of the United
Kingdom. However, while there have been privacy concerns expressed
with regard to the ability to identify individuals or vehicles
in embarrassing contexts through their chance exposure at the
time that the Google StreetView photographic collection vans were
passing, the system is a static photographic view, not a live
video feed, and most privacy concerns can been easily addressed
with simple technological solutions. In May, 2010—as with
Facebook—Google responded apologetically to a wave of criticism
about the (apparently incidental) collection of personal information
from wireless networks by StreetView's photographic vehicles in
the UK.
Of much more concern is the new breed of social geodemographic
systems, exemplified by Google Latitude. These combine GPS-enabled
mobile telephones with Google Maps and social networking data.
Individuals can choose to have their mobile location tracked by
selected friends and to track their friends' mobiles. While this
system is voluntary (opt-in) and consensual, there is the potential
here for rather less consensual activities though hacking or simply
by companies integrating databases of mobile telephone location
data with other publicly available or purchasable data.
Geodemographics are also 'crowdsourcing',[61]
but such crowdsourcing is not always done with the consent of
those whose information is being sourced. For example, the locational
computing project, CityWare, trialled in Bath, raised concerns
for allegedly tracking people's movements without consent via
Bluetooth wireless.[62]
There is another small but growing trend to crowdsource the analysis
of captured data and video images. Early experiments included
the Shoreditch Digital Bridge project, mentioned in the 2006 report,
which allowed residents of the Haberdasher's Estate in London
to see live feed from the video surveillance cameras on their
estate.[63] Although
the experiment was ended in 2007, others have followed, most notably
the Internet Eyes start-up, which operates an 'event notification
system'.[64] They plan
to broadcast surveillance footage from paying private business
customers on the Internet, with the idea that the public will
work as monitors. The public participants interact with this system
as a game where 'players' gain points for spotting suspected crimes
and lose points for false alarms, and monthly prizes are paid
out. This particular company may or may not succeed; however,
just as early examples of social networking have disappeared or
failed, other more robust or different models may well achieve
rather greater success. It seems likely that Open-Circuit Television
in various forms will gradually replace the old Closed-Circuit
model.
WELFARE ADMINISTRATION AND SOCIAL SORTING
The 2006 Report noted that 'social sorting increasingly
defines the surveillance society' and 'affords different opportunities
to different groups and often amount to subtle and often unintended
ways of ordering societies, making policy without democratic debate'.
A focus on risk (and 'opportunity') management underlies such
social sorting and the widespread use of new technologies and
their associated statistical techniques facilitates it. With the
decline of shared risks within state-sponsored welfare systems,
for example, risk has become increasingly an individual responsibility
and the management of those risks has become an industry in itself.
In order to streamline and organize such risks, private firms—such
as Accenture or Experian—are engaged. They mobilise their
considerable information technology and statistical skills to
sort risky individuals into categories for differential treatment.
For example, UK government has been concerned with
so-called 'high cost, high risk' social groups who are vulnerable
to 'social exclusion.'[65]
One such group is young people classified as 'NEET' (Not in Education,
Employment or Training). According to one study, a NEET 17-year
old is likely to cost the British taxpayer 10 times more by the
time he or she is 28 than their counterparts in education, training
or work, just because they may claim benefits, use health services,
become involved with the criminal justice system or not pay taxes.
Social intervention, even from the time of pregnancy, is required
to avoid social exclusion. Thus locating, targeting, tracking
and mapping the distribution of such groups is vital, as is extensive
data sharing to classify more carefully and to organise the necessary
surveillance. In other words, once socially-sorted, such groups—homeless
people, drug users and previous offenders are viewed similarly—can
expect greater and continuing scrutiny that may either exacerbate
or ameliorate their situation.
ETHNIC TARGETING
Despite some slowing in growth of air transport passenger
numbers since 2005 (affecting international holidays and domestic
flights), more than 150 million passengers still go through UK
airports each year.[66]
Scrutinising passengers without examining each individually has
led airports to rely on profiling and screening. But this in turn
depends on records such as the PNR that is derived from commercial
data collected by the airlines from their passengers.[67]
Since 9/11 considerable concern has been expressed about the ways
that 'Arab' and 'Muslim' passengers are disproportionally singled
out for special attention and experience more delay, not to mention
affronts to their dignity, than other groups.[68]
Since 9/11, several incidents and deployments have
shown how particular groups, especially those deemed 'Muslim'
or 'Arab' or 'Middle Eastern,' may experience negative discrimination.
In Birmingham, for example, ANPR systems are used disproportionately—three
times more—in areas where there is a concentrated Muslim
population. Introduced as an attempt to combat antisocial behaviour,
vehicle crime and drug-dealing in the area, the system is actually
paid for by a 'Terrorism and Related Matters Fund.'[69]
Following the local and national furore over this scheme in mid-2010,
not least in regard to the alleged deception and non-transparency
about the aims of the system, the Birmingham scheme was discontinued
and the Home Secretary declared that ANPR as a whole should be
placed under statutory control.[70]
CALL CENTRES
Call centres are well known as the service sector's
'mass production areas'; however they are also custodians of consumer
data. The operation of a call centre is based on accurate customer
account records so that employees can identify customers before
talking to them. Outsourced call centres (sub-contracted to handle
calls for other companies) rely on the transfer of customer data
from their clients in order to operate their businesses. These
domestic and international data flows render them vulnerable to
abuse through fraud, theft or employee sabotage. In October 2006,
Channel 4's 'Dispatches' documentary series highlighted the customer
data black market in India, prompting an investigation by the
ICO. The problem is not unique. In 2007, BBC Scotland reported
that one in ten Glasgow call centres had been targeted by organised
criminals. The negative consequences for customers, ranging from
identity theft to unwanted phone calls, can be very damaging as,
for example, in 2009 when T-Mobile employees passed on customer
contacts to third parties.[71]
DATA MARKETSTHAT THESE PROCESSES ARE POSSIBLE IT
DUE TO THE INTENSIFICATION OF NETWORKING. THE SCALE OF CONNECTION
HAS INCREASED SINCE 2006, SUCH THAT THE VISION OF 'UBIQUITOUS
COMPUTING' IS NOW A PRACTICAL POSSIBILITY. THERE IS A MOVEMENT
TOWARDS THE 'OPENING' OF COMMUNICATIONS THAT HAS SERIOUS IMPLICATIONS
FOR PRIVACY - OPEN-ACCESS, OPEN-SOURCE, OPEN-INNOVATION - ALL
DRIVEN BY CROWDSOURCING AND SHARED KNOWLEDGE, AND FACILITATED
BY 'CLOUD COMPUTING'. CLOUD COMPUTING IS A SYSTEM OF DATA STORAGE
AND ACCESS, WHERE DATA IS NO LONGER RESIDENT ON CLOSED SINGLE
COMPUTERS BUT ACCESSIBLE ANYWHERE VIA THE WEB AND WIRDATA MARKETS
Data markets have also opened up. Organisations that
seemed simple a few years ago, for example publishers, have reinvented
themselves as databrokers, combining information management from
academic books and journals, through media archives, to personal
data collation and analysis. SAP (above) is one example; another
is Reed Elsevier, which owns companies including Elsevier academic
journals, LexisNexis newspaper archives, and Choicepoint data
analysis, and calls itself 'a world leading provider of professional
information solutions'.[72]
Databrokers are a key example of the way in which processing of
personal data by private organisations has intensified in recent
years, yet they are barely known to the general public as holders
of their personal data.
INFORMATION DISSEMINATION
As has been shown earlier, much of data processing
involves specific data disclosure, but the main emphasis of the
concept of dissemination is on the broader communication or disclosure
or sharing of personal information to larger numbers of organisations,
individuals, or the general public. This takes place in a variety
of contexts, and the concerns that arise may be different. The
many—and continuing—data breaches and losses that
have happened illustrate potential or actual uncontrolled dissemination
through lapses in information security and in the duty of care
for confidential information on individuals. Dissemination also
occurs with regard to the release of information under the Freedom
of Information (FOI) regime, when personal details may either
be redacted or exposed depending upon the determination of the
public interest. Recently, FOI requests and ICO decisions about,
for instance, the expenses claimed by Members of Parliament, have
highlighted the somewhat paradoxical way in which privacy issues
are often engaged, and debate fostered, by the exercise of the
countervailing public right to know.
DATA SHARING
The 2006 report identified flows of data from people
to databases, and between databases, as a key process underpinning
the surveillance society. Whilst many of us willingly consent
to the giving of our personal information in one setting, the
flow of data from that setting to another (e.g., from commerce
to policing, as with Oyster Cards) requires description and comment.
Data are frequently traded and transferred, and while surveillance
may have adverse effects, data flows can also confer benefits
and opportunities. For individuals, the sharing of personal data
can cement friendship bonds, enhance leisure and career opportunities,
and create greater convenience. For businesses, the gathering
of more detailed customer and competitor data can create commercial
opportunities. For the public sector, knowing how citizens use
resources can result in the better targeting of services, and
more efficient use of resources. For government, security, crime
control and other policy objectives are facilitated by new data
flows from private and public sector partners.
Pressures towards more extensive data sharing in
the UK have mounted in the years since 2006, with renewed attempts
to provide 'transformational government', including more integrated
public services to individuals based on identifying them, verifying
their claims to services, and collating personal information from
various databases. The sharing of data—or the tragic lack
of it—has featured prominently in social care and policing
practice, and particularly in child-protection cases since the
Bichard Report (2004). It has also been a major element in law
enforcement, counter-terrorism, and in combating fraud. This has
fuelled greater efforts by government to overcome real and perceived
obstacles to access to data, whether legal barriers, operational
practices, or organisational frictions. Clause 152 of the Coroners
and Justice Bill in 2009 aimed to give Ministers wide powers to
authorise data sharing through secondary legislation where they
deem it necessary and proportionate, thus sweeping away all barriers.
However, the clause was withdrawn by the previous Government following
strong and widespread opposition. In the commercial world, the
sharing of data across companies and sectors, and between the
private and public sectors generally, have become increasingly
normal. The state's reliance on exchanges with information-service
companies such as Experian when processing individuals' applications
for, for example, drivers' licences, has become a routine part
of operational procedures.
SOCIAL NETWORKING
The explosion of social networking has enabled a
revolution in how people, particularly younger people, communicate
with family and friends. However, since 2006 the proliferation
of complex modifications to the way in which the dominant social
networking company, Facebook, operates significantly changed how
and to whom personal data contained on a person's profile are
made available. In particular, Facebook allowed information previously
restricted to those registered as a 'friend' of the user to be
shared by all. As the Electronic Frontier Foundation pointed out,
Facebook now treats lists of friends, names and many other personal
details, as publicly available information.[73]
Following public concern, including prominent NGO and regulatory-agency
action in Canada, in 2009, and again in 2010, Facebook retreated
from its privacy-unfriendly practices and undertook to simplify
and improve its privacy settings in order to facilitate individual
control and the transparency over the treatment of subscribers'
personal information.
The significance of developments in the management
of social networking is in the power that they give to create
extended profiles of a person. For instance, by analysing the
publicly available data revealed by an individual on their Facebook
pages and combining it with data from their friends' pages, it
is technically possible to predict political affiliations[74]
or even sexual orientation.[75]
In addition, commercial organisations are already developing software
applications to enable businesses to integrate social network
data about their employees into their corporate systems, as seen
with SAP, above.
IMPLICATIONS, ISSUES AND PROBLEMS
This discussion now turns from the description of
examples to highlight a number of important issues to which they
give rise: issues that represent challenges to society generally,
to the individuals whose personal information is involved, to
regulatory policy-makers, and to regulatory practice based on
legal rules and principles.
PRIVACY, ETHICS AND HUMAN RIGHTS
Privacy remains a key concern, whether to do with
the collection, use and misuse of databases or with other domains
of surveillance. This report cannot discuss the myriad and well-known
ways in which surveillance practices impact upon privacy and human
rights, but a few relatively novel developments can be highlighted.
Recent experiences with body scanning have highlighted the importance
of bodily privacy in public places. A number of privacy-enhancing
solutions to this problem have been mooted in Canada: developing
algorithms which act as 'privacy filters', reducing or eliminating
all personal detail from faces and genital areas; strict prohibition
of retention and distribution of imagery; a ban on staff bringing
photographic devices into the scanning area; a physical removal
of scan monitoring to closed rooms and access to personal identification
of the passenger throughput; and detailed audits to ensure compliance
with these regulations.
Video analytics are also a case in point. The limited
protections and rights for those captured by video surveillance
become even less relevant once the secondary data generated through
analytics allows the reconstruction of patterns of movement, possible
place of residence, favourite locations and so on. A major concern
is the use of analytics software to scan a scene automatically,
identifying patterns and presences which are deemed 'abnormal'
within a normative definition of what occurs 'normally' at that
time and place within a city. Analytics systems in general facilitate
new combinations of data about a subject that, after analysis,
create a more fine-grained picture and expose the subject in new
ways, raising privacy concerns.
The privacy problems associated with drones are worth
mentioning here: specifically, they relate to the extent to which
those present 'in public' can claim any kind of right to privacy.
Drones also present a more pervasive form of surveillance than
CCTV because of their mobility. They raise significant problems
in terms of consent and notice, as they are barely visible from
the ground, and yet have the potential to track and film people
in real time. Issues around proportionality arise when they are
following a 'target'.
Flows of data into new domains of application, particularly
those that attempt to create total or mandatory visibility of
the person, also raise significant concerns. Perhaps the most
prominent of these discussed in this report is the question of
whether the e-Borders programme challenges freedom of movement
within the EU, and is compatible with the national data protection
laws of other Member States.[76]
Notwithstanding the recent change of Government, commitment to
a project that stipulates the mandatory collection and retention
of detailed personal information from each traveller was always
going to raise privacy and other concerns about the legality,
necessity and proportionality of the scheme.
However, as noted in the 2006 Report, there are social
and ethical values other than privacy that are also challenged
or damaged by surveillance. Here, the threat to trust must be
emphasised, and it is important to continue to underline the way
in which 'social sorting' contributes to the drawing of social
distinctions. People are sorted into categories (including gender,
socio-economic, religious and ethnic/national) in order to distribute
opportunities and risks according to some institutional criteria.
The effects are often subtle and complex but with everyday consequences
for work, travel, consumption and relations with official bodies.
As the examples show, the distinctions are often reinforced in
the process as well.[77]
It is import to recall, in the words of the 2006
Report, that '[n]o one has voted for such systems. They come about
through processes of joined-up government, utility and services
outsourcing, pressure from technology corporations and the ascendancy
of actuarial practices.' Social sorting is nowhere an official,
legislated process. It is one in which statistical categories
determine differential treatment for different population groups,
directly affecting their life-chances and opportunities. But while
it clearly affects social ethics and justice it is not in any
sense subject to democratic participation.
The sharing of data sits uneasily alongside concerns
about confidentiality, particularly of 'sensitive' data of the
kind typically used in personal public services. It also complicates
the question of consent to the secondary use of personal data
for purposes not clearly related to those envisaged at the time
of collection, and cuts across what many people expect or believe
happens to their data. Lack of transparency and control are important
issues, as people may feel powerless to prevent the processing
and sharing of their information by organisations on which they
are dependent for important benefits and services.
Finally, the international flow of consumer data
to non-EU jurisdictions raises data protection issues. Currently
non-EU call centres are required to build data protection principles
into service contracts, leaving data protection practices vulnerable
to the stresses and strains of call-centre life. Recent call-centre
data protection scandals in non-EU countries highlight this as
a continuing concern.
'FUNCTION CREEP'
The 2006 Report identified a process of 'function
creep' that was noticeable in surveillance. Function creep occurs
when a technology introduced for one purpose is then used to fulfil
other purposes. Function creep is not an inherently negative concept,
for much beneficial innovation rests on finding new uses for existing
applications and technologies. However, in the context of data
protection and privacy considerations, if personal data—collected
and used for one purpose—migrates to other ones, then surveillance
can become intensified and privacy rights breached beyond what
was originally understood and considered socially, ethically and
legally acceptable. The previous discussion of cameras in pubs
and schools, the police use of unmanned drones, mobile phone technology,
social networking, and ANPR—for example, its use by car-park
operators—has illustrated the process in various domains.
Clearly in the case of TfL, the ANPR cameras were
installed for the purpose of enabling and enforcing the central
London Congestion Charge scheme, but the data are now shared with
the police for national intelligence purposes. This is arguably
legitimate and beneficial, and has independent oversight because
the ICO will receive an annual report from the Commissioner of
the Metropolitan Police on the operation of this data-sharing
agreement. So, too, would be the use of ANPR in the case of violent
protest. However, the logging of political protestors lawfully
exercising their right to protest peacefully is arguably less
legitimate. A second egregious example is the changes made by
Facebook to its privacy settings, as a technology sold to its
users as a means to communicate with family, friends and acquaintances
now allows that information to be lifted out of context, merged,
and reanalysed in contexts that were never imagined or consented
to by the owners of the data. Third, the use of UAVs for policing
demonstrates another form of function creep: the migration to
domestic policing of a technology developed to track the location
and movements of the enemy in war. In the context of war, consent,
privacy, and data protection may be little considered, but in
the context of the mundane policing of citizens, such considerations
should not be so easily abandoned.
As systems are designed with interoperability in
mind, new products, and new surveillance possibilities, can emerge
as older technologies come together to create functions. Once
established, systems can easily be 'locked in', while business
processes are developed on the assumption that function creep
is a benefit without drawbacks. Function creep often happens unobtrusively:
for instance, data-mining to profile consumers in an attempt to
target marketing more effectively. Its rationale is sustained
by considerations of economy, efficiency, effectiveness and convenience
in the exploitation of information resources, whether technologies
or databases, as assets within the organisation. On the other
hand, function creep often stretches fair information principles
towards their limits.
Invasions of privacy may be justified in certain
cases when compared with the benefits resulting from function
creep. This may be particularly so where the nature of the invasion
does not violate what people have come to accept as a reasonable
expectation of privacy. However, surveillance devices, developed
for military, anti-fraud, or revenue purposes may migrate to applications
affecting larger numbers or new categories of the civilian population.
The use of these tools often connote suspicion of wrongdoing requiring
monitoring, and may step over the boundary of what is tolerable
in a society that upholds human rights and in which ethical norms
shape the approach to privacy protection. The further uses of
UAVs, police databases and mobile phone technology particularly
raise these concerns, and may be detrimental to the climate of
trust that is necessary for social and citizen-state relationships.
Function creep facilitates the erosion of these values and rights,
even where the intention is benign.
TRANSPARENCY AND ACCOUNTABILITY
As can be seen in the cases of social networking
and CCTV in schools, when there is migration from the original
purpose or functionality, it is normally difficult for members
of the public, policy-makers and regulators to keep track and
to fix responsibility on those who were originally identified
as controllers or custodians. This is, in part, because function
creep is incremental and does not necessarily create a clearly
new system or use that would give rise to such questions, or to
a subsequent reconsideration of the grounds on which the original
function was deemed to be acceptable, necessary or proportionate.
Given the relatively low level of public and political understanding
of technologies such as databases, it is too easy for functions
to creep surreptitiously without exposure to widespread comment,
debate, or procedures for deciding on the acceptability and accountability
of the new functions or uses.
The flow of data between databases is a normal aspect
of everyday personal, commercial and governmental life. Databases
and the data that flow between them are key elements of infrastructure,
and hence their effects only become apparent when those infrastructures
fail, as recent losses of government data illustrate. Rendering
these everyday systems accountable and transparent is particularly
difficult in commercial operations where the ownership of personal
data—such as customer account details—is the basis
of competitive advantage. Law-enforcement bodies would also argue
that making ANPR and other data flows transparent would undermine
their efforts to fight crime. However, in the case of deliberate
commercial and governmental attempts to harness data to strategic
ends, it may be possible to identify aspects that represent intensified
surveillance, and that should attract regulation. The use of personal
social networking data to inform business decisions is a key example.
Privacy Impact Assessment (PIA), expanded to highlight non-privacy
impacts, could identify problems with the use of data from an
employee's non-work life in the workplace. In the realm of law
enforcement, FOI requests have been used to great effect to reveal
data flows around ANPR; however their piecemeal nature undermines
the introduction of more sustained reporting requirements on data
use and analysis by the police.
In the case of new uses for data, especially disclosures
or sharing of data, issues of consent and control can be more
difficult to address if there is a lack of transparency and weak
systems of accountability. These points are revisited later, when
the regulatory implications of function creep as well as other
processes are considered.
BLURRING OF THE PUBLIC AND THE PRIVATE, AND UNINTENDED
CONSEQUENCES
Controversies surrounding the movement of data across
public/private boundaries either at a personal or an organisational
level are illustrated by the examples included in this report.
For example, worker responses to body scanning highlight the sometimes
irresistible urge of voyeuristic opportunism when the private
and taboo (i.e., nudity) is made public. The same danger applies
when managers are able to peer into the Facebook and LinkedIn
pages of their employees. Both examples also represent unintended
consequences. Wider experiences of air carriers involved in the
e-Borders programme have highlighted the huge investments needed
to transfer data from a large number of private organisations,
originating in different formats and in different parts of the
world, to one central point in the public sector. Once again,
the use of ANPR and DVLA data provides other illustrations of
the blurring of boundaries between the state and the private sector
with regard to personal data flows.
Finally, with data analysis, the ownership of multiple
data sources creates enormous economic value, and economic actors
may be tempted to overstep the mark in data analysis and their
subsequent commercial strategies. Data flows are notoriously opaque
and hence difficult to render accountable and transparent. Their
start and end points are difficult to define, as are the paths
that they take, which often lie deep in the proprietary systems
of private actors or public-sector agencies. And finally, the
longer and more complex the flow, the more likely that there will
be unintended consequences for data subjects, even in the most
legal and transparent examples.
Regulatory Developments and Problems
The challenges posed to regulation
As the previous section of this report has shown,
there is a formidable array of continuing and new surveillance
challenges to protecting information privacy and other individual
and social values, including autonomy, dignity, and equality.
These challenges have been met with some important recent countervailing
action, in which the ICO has played a leading part. However, there
are constraints on the activity that any regulator can take within
a framework of legal controls. This is because the governance
of CCTV, ANPR, the forensic use of DNA, and other surveillance
and data collection practices takes place in an under-regulated
environment, leaving the individual or social group without a
statutory basis for granting consent, discovering what is happening,
or obtaining remedy. Only in certain circumstances does much surveillance
fall within the purview of general laws such as the Data Protection
Act (DPA) 1998 and the Regulation of Investigatory Powers Act
(RIPA) 2000, which permit wide exemptions from all or part of
their provisions.
Much of the preventative and remedial activity, as
well as efforts to warn about threats to privacy and liberties,
has taken place through the opportunities provided by the occurrence
of scandals, 'security storms' and 'horror stories' of one kind
or other. These have included the loss of massive amounts of personal
data through carelessness and confusion, poor organisational practice,
and weakness in information security across public as well as
private-sector organisations.[78]
They have also involved the often organised, large-scale and illegal
buying and selling of personal information held within public
and other bodies.[79]
Government's plans to keep details of the internet and telephone
communications of the entire population, as well as the continued
development of centralised public-sector databases, including
the promotion of extensive data sharing and profiling, have continued
apace during these years, with some changes and occasional reversals.
These are only some of the issues that have fashioned the agenda
for regulation.
REGULATORY RESPONSES
Parliamentary and governmental reports, and those
of outside NGOs and think tanks, have contributed strongly to
resisting and limiting the adverse effects of surveillance and
poor data handling and management. They have urged more effective
rules and guidelines for information practices that, if left to
themselves, would only aggravate the problems individuals and
groups face regarding the collection, processing and disclosure
of their information. These reports have highlighted many of the
issues that the Report on the Surveillance Society brought
into public debate in 2006, and that itself inspired some of the
parliamentary and group investigations in the years since. The
House of Lords Constitution Committee Report, for example, pointed
to surveillance's 'powerful influence over the relationship between
individuals and the state, and between individuals themselves',
thus signifying the importance of surveillance to the very life
of our society, going beyond its effect on individual privacy
rights and the question of data protection as such.[80]
Following the discovery of massive data breaches
by Her Majesty's Revenue and Customs, amongst other departments
and agencies, government itself responded by tightening up its
approach to data handling. In 2008, it promoted new security,
management, and training regimes, and specific techniques including
a better understanding of information risk, across the public
sector in order to improve the culture and accountability for
the public's personal data.[81]
How far these have actually taken root, and how uniformly, is
not easy to determine, although a recent review describes important
progress.[82] The impact
of the new Government cannot yet be determined.
However, the lessons learnt from data breaches will
more likely be those concerning data security, rather than
of the wider range of privacy and surveillance issues, such as
excessive data collection and disproportionate analysis and sharing
of data. If that is so, many facets of surveillance and privacy
invasion will not be subject to sufficient regulatory renewal
unless attention is deliberately focused on them through parliamentary,
governmental, and non-governmental routes. The Thomas-Walport
Review[83] went some
way towards casting light on the question of data sharing and
towards putting it on a more privacy-friendly footing, partly
by clarifying the nature of the judgments and decisions required
when considering the sharing of data. A number of its recommendations
were in line with the new governmental approach to data handling,
and emphasised the importance of transparency, accountability,
and audit, plus vigorous action by regulatory officials to keep
these cultural changes in motion.
It is encouraging that practical recommendations
for better instruments and safeguards to be deployed by official
regulators have been made in several reports in recent years,
increasing the likelihood of stronger regulation that addresses
surveillance issues beyond data security. The ICO has championed
the development of instruments that, if implemented on a significant
scale, might help to keep surveillance in check and mitigate or
prevent the misuse of personal data. For example, PIA has been
actively encouraged and a framework for its use has been produced
and further revised.[84]
PIAs could play an important part in mitigating function creep
and, if published, help improve transparency. A new Code of Practice
for CCTV was adopted in 2008.[85]
It, too, will assist in the assessment of impact not only on privacy
but on other values that people cherish, in reinforcing purpose-specificity,
and in promoting transparency and accountability for CCTV systems.
The Government has promised further regulation in this area, but
without detail at the time of writing.
A new statutory Code of Practice for Data Sharing—an
outcome of the Thomas-Walport Review—is nearing completion,
potentially clarifying the validity and limits of data sharing
and providing a better basis for making decisions about when to
share data, with whom, and why. Reflecting international initiatives,
Privacy by Design (PbD)[86]
has been recognised, encouraging information technologists to
build privacy protection into their systems architecture and specific
products from the start.
All these initiatives can be seen as part of a strong
regulatory package, but how far they will—or can—be
implemented in practice by normally reluctant companies and public
agencies will determine their value. Sceptics will say that there
are few examples, anywhere, of effective and non-perfunctory PIAs
that actually modify the plans or practices of organisations.
Codes of Practice can often become symbolic tokens rather than
having truly implementable regulatory force. The value of PbD,
which so far has more champions than practitioners, is as yet
unproven: the business case for its precursor, Privacy-Enhancing
Technologies (PETs), has not caught on to the extent that supporters
envisaged.
However, these regulatory initiatives are advantageously
grounded in the law and in the principles and values of privacy
and human rights underpinning the law, and do not offer easy options
to avoid, displace, or circumvent these. The values and principles
that provide the basis for Codes, assessment tools, and technical
design are the very ones that are already well-known in data protection
and human rights law, usually invoked by those who press for a
limitation of the adverse effects of surveillance. Therefore,
their proper implementation is likely to represent a significant
effort in limiting surveillance.
REGULATION IN FUTURE
Regulatory efforts in the UK have not been best served
by existing data protection and privacy law: the former is relatively
weak in its domestic transposition of the European Union Data
Protection Directive 95/46/EC[87],
and—in any comprehensive and focused sense—privacy
law is largely absent, although the right to privacy is explicitly
and frequently mentioned in the Directive that our Data Protection
Act was intended to transpose. These restrictions have set outer
limits to what can be expected of a regulatory regime that might
safeguard individuals and society from the excesses of surveillance,
although it is a promising sign that change in the law and its
articulation with human rights legislation, and reform of the
Directive, are still on the agenda.
In particular, how the collection of data can be
minimised or stopped will remain an important question. It will
require sustained debate about what would constitute legitimate
and acceptable purposes, and desirable limits. Clarity about this
has been to some extent assisted by the raising of public and
parliamentary awareness of surveillance in recent years, but continuous
efforts by official regulators such as the ICO and other Commissioners
will be required to reinforce and extend the platform that has
begun to be put in place.
Surveillance cannot be effectively constrained without
a more rigorous regime of law, supervision and enforcement. The
enactment of positive legislation to create or to reform the regulation
of surveillance activities where it is absent or deficient must
play an important part in the near future. Regulation would be
assisted by reform of the legal framework—perhaps tightening
the link with human rights including the right to privacy—and
of the powers available to regulators, whether generally or with
respect to specific or sectoral surveillance activities. The promised
repeal of some of the statutory or administrative basis for surveillance
will be an important step: for instance the repeal of the Identity
Cards Act 2006 and the destruction of the NIR, the reappraisal
of ContactPoint, and the cancellation of the next generation of
biometric passports. The prospect of further legislative dismantling
of parts of the 'database state' and the reform of human rights
legislation cannot yet be evaluated in terms of their implications
for surveillance itself or for the ability of regulators to enforce
other laws, such as the DPA, more effectively. It would be important
for any such dismantling to be investigated—by Parliament,
but not exclusively—in terms of whether it actually amounts
to a net increase in privacy protection and a diminution of surveillance,
or instead merely to a reorganisation of current functions—such
as systems of identification and authentication—without
essential reform of the scope and intensity of surveillance.
Given the powerful commercial, governmental, and
popular forces that brought about an intensification of surveillance
in the first place, there may be considerable resistance to giving
up the right, or the felt need, to hold so much information on
citizens and consumers, to share it with other agencies, and to
analyse it to yield new and potentially valuable information.
There is also likely to be resistance to reining in the proliferation
of video surveillance, to curbing the excesses of DNA collection,
and to modifying information systems that relate to the safety
of vulnerable persons. 'Knee-jerk' reactions to tragic incidents
are likely to continue to be favoured. In these contexts, governmental
self-restraint and careful scrutiny by Parliament, regulators,
NGOs, the media, and the wider public would seem to be essential.
Significant recent changes that are expected to strengthen
regulation are the increase in the ICO's budget through a new
system of fees for data controllers' notifications, the new power
to impose large financial penalties for reckless and wilful breach
of the data protection principles, and the enactment of new inspection
and assessment powers for the ICO. Unfortunately, the failure
to extend the latter to the supervision of the public sector outside
central government, or, in particular, to the private sector,
is out of keeping with the need to regulate more effectively the
privacy implications of the state's increasing involvement of
the private sector in the provision of information services for
public-sector activities. It also leaves unstrengthened the ability
to regulate the private sector's extensive and intensive surveillance
and data collection activities as such, some of which have adverse
social-sorting and discriminatory effects in the commercial world.
Including some of these changes mentioned above,
the House of Lords 2009 Report also made many recommendations
for improving not only the legal framework but also the ancillary
and supportive mechanisms that might make regulation work more
effectively. These would include roles for civil-society organisations
and the general public. The ICO welcomed most of the recommendations,[88]
some of which were already said to be in train, although relatively
few of them have yet to be fully adopted by Government and others
have been resisted. This report is not the place to review these
possibilities at any length, but a few of them can be commented
on as of particular importance in denoting some areas that Parliament
and Government may consider unfinished business.
First, the inspection regimes of the Chief Surveillance
Commissioner and the Interception of Communications Commissioner,
who have RIPA responsibilities, would benefit from greater flexibility
so that they can promptly investigate cases of alleged disproportionate
or unnecessary use of RIPA. Moreover, a more coherent relationship
between the Commissioners who act under RIPA, and with the ICO,
would help to increase public confidence in the regulation of
surveillance. Second, in view of their apparently excessive and
perhaps arbitrary use of surveillance powers under RIPA, consideration
should be given whether local authorities, rather than the police,
are the appropriate bodies to exercise such powers. If they are
found to be the appropriate bodies, such powers should only be
available for the investigation of serious criminal offences,
and in any case should only be exercised where strictly necessary,
and in an appropriate and proportionate way. Third, a system of
judicial oversight for surveillance carried out by public authorities
would be a major improvement, along with individuals who have
been made the subject of surveillance being informed of that surveillance,
when completed, where no investigation might be prejudiced as
a result. Compensation for persons subject to unlawful surveillance
by the police, intelligence services, or other public bodies would
help in inducing a further measure of self-restraint.
Finally, regulation and the limitation of surveillance
can only go so far within the confines of one country, applying
that country's legal and regulatory powers and resources. As with
money, information collected by surveillance practices and instruments
flows across national boundaries in a variety of contexts: counter-terrorist
activities, law enforcement, international commerce—online
and otherwise—and public services. The problems of regulation,
as well as the opportunities, are already being realised at European
and wider international levels.[89]
UK government as well as ICO participate in these processes of
deliberation and of forming more effective and collaborative responses
to the challenges of surveillance and privacy threats. These transnational
efforts must continue to play an important part in protecting
the privacy interests and rights of UK citizens and residents.
Conclusion
Since 2006, there has been something like the kind
of public, media and policy debate for which the Report on
the Surveillance Society had called. Surveillance became an
electoral issue, and has been one of the first things addressed
by the incoming Government. Yet, despite responding to concerns
over ID cards, CCTV, the DNA database and ContactPoint, in particular,
there are still many areas where surveillance continues to intensify
and expand. Some technologies have gone from being a subject of
speculation to being in mainstream use in many different areas.
The national roll-out of ANPR highlights the expansion of video
surveillance and analysis, and the linking or sharing of data
from different databases continues. Private-sector data-gathering,
analysis and sharing, particularly through online social networking
tools, has increased exponentially. In the immediate future, the
growth of crowdsourcing and a movement to 'open circuits' will
add new dimensions, as will the increasing involvement of the
EU in surveillance and security issues. In the longer run, the
advent of 'ubiquitous computing' in daily life and work, with
the deployment of myriad sensing devices and analytical tools
to predict human behaviour and to provide services or controls,
will further challenge the regulatory repertory and assumptions
that we have known for many years up to the present. A report
such as the present one, conducted four years from now, may have
to take these developments into account, as the 2016 scenarios
projected in the 2006 report had done.
Whether the trajectory of regulation through various
instruments, including the law, technical means, and self-regulation—and
the critical awareness and vigilance of public opinion—has
matched the continued development of surveillance since 2006 is
not certain. Some significant steps have been taken to increase
the powers available in the regulatory system, and there are encouraging
efforts in the public sector and sometimes in the private sector
to change the culture of organisations involved in personal information
practices. Testing the plans for surveillance systems against
the rigorous criteria that might be available through PIAs and
other assessment methodologies that could be adapted to evaluate
impacts on other, non-privacy, outcomes of these systems, and
increasing the pressure on technology designers and users to embed
privacy-friendly mechanisms into their products and systems, can
play an important part, but only if these requirements become
the norm and not the exception.
It will remain an important question, however, whether
the current legal instruments, at UK and European levels, including
specific data protection legislation as well as broader human
rights law, are robust enough to limit surveillance and curb the
excesses of data collection, or whether legal reform and better
integration of legal and other regulatory instruments will be
the linchpin upon which much else depends.
2 David Murakami Wood (ed.), Kirstie Ball, David Lyon,
Clive Norris and Charles Raab, A Report on the Surveillance Society
for the Information Commissioners Office by the Surveillance Studies
Network: Full Report, 2006, available at: http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/surveillance_society_full_report_2006.pdf,
accessed 15/06/10. Back
3
This reflects, in part, the taxonomy in Daniel J. Solove, 'A Taxonomy
of Privacy', University of Pennsylvania Law Review, 154, 3, 2006,
pp. 477-560. His fourth category, 'invasion', involves intrusion
and interference with decisions. It need not involve personal
information, but often does, and sometimes represents the effects
of social sorting and covert surveillance that are discussed at
a later point.
Back
4
e.g. House of Lords, Select Committee on the Constitution, 2nd
Report of Session 2008-09, Surveillance: Citizens and the State,
HL Paper 18-I, paras. 153-77. Back
5
Charles D. Raab, 'Expert Report: Public Services', in Murakami
Wood et al., op cit, A Report on the Surveillance Society - Appendices.
Back
6
House of Lords, Select Committee on the Constitution, 2nd Report
of Session 2008-09, Surveillance: Citizens and the State, HL Paper
18-II, pp. 315-41. Back
7
Cabinet Office, Transformational Government - Enabled by Technology
(Cm 6683), London: The Stationery Office, 2005. Back
8
Ross Anderson, Ian Brown, Terri Dowty, Philip Inglesant, William
Heath and Angela Sasse, Database State, York: Joseph Rowntree
Reform Trust, 2009, p. 4. Back
9
Ministry of Justice, Government response to the Joseph Rowntree
Reform Trust report: 'Database state', 08/12/2009, available at:
http://www.justice.gov.uk/government-response-rowntree-illegal-databases-report.pdf,
accessed 19/04/10. Back
10
Factsheets and material formerly on the ISA website at http://www.isa-gov.org.uk/,
accessed 24/04/10, are now unavailable; FAQs on the website of
the Department of Children, Schools and Families at http://www.dcsf.gov.uk/news/index.cfm?event=news.item&id=vetting_and_barring_myth_buster,
accessed 24/04/10, are now unavailable. Back
11
HM Government: The Coalition: Our Programme for Government, 05/2010,
p. 20, available at: http://programmeforgovernment.hmg.gov.uk/,
Accessed 15/06/10. Back
12
ICO Policy Committee Minutes, 14/09/09, available at: http://www.ico.gov.uk/upload/documents/library/corporate/notices/20090914_pc_september_mins.pdf,
accessed 15/06/10. Back
13
Department for Children, Schools and Families, 'Contactpoint to
start national rollout', 06/11/09, available at: http://www.dcsf.gov.uk/pns/DisplayPN.cgi?pn_id=2009_0210,
accessed 19/04/10. Back
14
But there are research-based apprehensions about its usefulness
in the daily work of practitioners; see Sue Peckover, Sue White
and Christopher Hall, 'Making and Managing Electronic Children:
e-Assessment in Child Welfare', Information, Communication and
Society, 11, 3, 2008, pp. 375-94. Back
15
See Joint Committee on Human Rights, Children Bill, Nineteenth
Report of Session 2003-04, HL paper 161. Back
16
Anderson et al., op cit pp. 17-18. Back
17
Ministry of Justice, op cit pp. 27-9. Back
18
Peckover et al., op cit. Back
19
For a discussion about the implications of familial searching
see Chris Pounder 'Issues Arising for the Retention of DNA Personal
Data', p. 9, available at: http://www.amberhawk.com/uploads/website%20DNA%20article%202010(2).pdf,
accessed 15/06/10 Back
20
The latest meta-evaluation is the Campbell Collaboration report,
based partly on research funded by the Home Office, which found
that there was very little evidence of the success of CCTV except
in controlled spaces like car parks. Brandon C. Welsh and David
P. Farrington, Effects of Closed Circuit Television Surveillance
on Crime, Oslo: The Campbell Collaboration, 2008. Back
21
Home Office and ACPO, National CCTV Strategy, 2007. Back
22
'Big brother is shouting at you', Mail Online, 16/09/06, available
at: http://www.dailymail.co.uk/news/article-405477/Big-Brother-shouting-you.html,
accessed 15/07/10. Back
23
Philip Johnston, 'Oi! Talking CCTV cameras will shame offenders',
The Daily Telegraph, 05/04/07, available at: http://www.telegraph.co.uk/news/uknews/1547663/Oi-Talking-CCTV-cameras-will-shame-offenders.html,
accessed 15/07/10. Back
24
"Smile, you're on camera!" Police to get "head-cams"',
Mail Online, 13/07/10, available at: http://www.dailymail.co.uk/sciencetech/article-467877/Smile-youre-camera-Police-head-cams.html,
accessed 15/07/10. Back
25
'A watching brief with body-worn video devices', BAPCO Journal,
25/07/07, available at: http://www.bapcojournal.com/news/fullstory.php/aid/752/A_watching_brief_with_body-worn_video_devices.html,
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26
http://www.defra.gov.uk/environment/quality/local/flytipping/research.htm,
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27
Jill Dando Institute of Crime Science, Fly-tipping: Causes, Incentives
and Solutions - A good practice guide for Local Authorities, 6
July 2006, available at: http://www.defra.gov.uk/environment/quality/local/flytipping/documents/flytipping-goodpractice.pdf,
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28
HM Government, The Coalition: our programme for government, May,
2010, available at: http://programmeforgovernment.hmg.gov.uk/files/2010/05/coalition-programme.pdf,
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29
'Warning over use of CCTV in pubs', BBC News, 16/03/09, available
at: http://news.bbc.co.uk/1/hi/uk/7946752.stm, accessed 15/07/10.
Back
30
Association of Convenience Stores (ACS), 'Response to Safe, Sensible
and Social: Selling Alcohol Responsibly', available at: http://www.acs.org.uk/en/lobbying/issues/alcohol/,
accessed 15/07/10. Back
31
Emmeline Taylor, I Spy with My little Eye: Exploring the Use of
Surveillance and CCTV in Schools, Unpublished PhD Thesis, University
of Salford, 2009, Chapter 5. Back
32
Olinka Koster, 'Revealed: The CCTV cameras spying on hundreds
of classrooms, Daily Mail, 18/08/08, available at: http://www.dailymail.co.uk/news/article-1046236/Revealed-The-CCTV-cameras-spying-hundreds-classrooms.html,
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33
See Taylor, op cit. Back
34
Ron Todt, 'School Caught In Spying Scandal Admits Activating Webcams
On Students' Laptops', Huffington Post, 02/20/10, available at:
http://www.huffingtonpost.com/2010/02/22/harriton-high-school-admi_n_471321.html,
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35
Patrick Wintour and Nicholas Watt, 'Coalition's schools plan to
create 2000 more academies', The Guardian, 25/05/2010,
available at: http://www.guardian.co.uk/education/2010/may/25/david-cameron-coalition-academies-plan,
accessed 15/06/10. Back
36
ACPO, ANPR Strategy for the Police Service - 2007/2010,
September 2007, p. 2. Back
37
DVLA, 'DVLA Accredited Trade Associations (ATAs)', available at:
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38
Martin Delgado, Rob Ludgate and Mark Nichol, 'DVLA sells your
details to criminals', Mail Online, 12/02/07, available at: http://www.dailymail.co.uk/news/article-369838/DVLA-sells-details-criminals.html,
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39
John Oates, 'DVLA makes £44m flogging drivers' details',
available at: http://www.theregister.co.uk/2010/01/20/dvla_data_flog/,
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40
National Parking Control, 'A.N.P.R. Services', available at: http://www.nationalparkingcontrol.co.uk/anpr_services.asp,
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41
Christopher Leake, 'Drivers' details sold by DVLA are used in
bizarre roadside adverts for Castrol', available at: http://www.dailymail.co.uk/news/article-1216414/Now-drivers-details-sold-DVLA-used-bizarre-roadside-adverts-Castrol.html,
accessed 16/07/10. Back
42
See 'Fears over privacy as police expand surveillance project',
The Guardian,15/9/2008, available at: http://www.guardian.co.uk/uk/2008/sep/15/civil_liberties,
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43
See 'Police secretly snapping up to 14m drivers a day', Times
Online, 4/4/10, available at: http://www.timesonline.co.uk/tol/news/uk/crime/article7086783.ece,
accessed 15/07/10. ACPO Freedom of Information requests have revealed
an exponential rise in data flow to the National Data Centre from
individual police forces. For instance, between 2007 and 2008
Devon and Cornwall police recorded a near 10-fold increase in
ANPR reads from 6.7 million to 63.9 million and Dyfed-Powys Constabulary
recorded a 12-fold increase from 2.6 million to 33.2 million.
See http://www.dyfedpowys.police.uk/documents/FoIDisclosure/RoadsPolicing/2009/361.pdf,
and http://www.devoncornwall.police.uk/YourRightInformation/FreedomInformation/Lists/Disclosure%20Logs/Attachments/282/Record%201.pdf,
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BBC News, 'Met given real time c-charge data', 17/07/2007, available
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'Webchat with Jacqui Smith, Home Secretary', 03/08/2007, The National
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46
The SCP working groups include representatives from the Serious
Organised Crime Agency, HM Revenue and Customs, the Maritime and
Fisheries Agency, and the UK Border Agency. See Paul Lewis, 'CCTV
in the sky: police plan to use military-style spy drones', The
Guardian, 23/01/10, available at: http://www.guardian.co.uk/uk/2010/jan/23/cctv-sky-police-plan-drones,
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'Heathrow worker warned over body scanner misuse', BBC News, 24/03/10,
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Charles Kelly, 'eBorders scheme is legal Border and Immigration
Minister confirms', Immigration Matters, 19/12/09, available at:
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49
See Kirstie Ball, Elizabeth Daniel, Sally Dibb, Maureen Meadows
and Keith Spiller, 'Exploring private sector responses to government
surveillance agendas', paper to be presented at 'The Political
Economy of Surveillance: an international research workshop',
9 - 11 September 2010, Open University, Milton Keynes. Back
50
Nicola Harrison, 'Undercover Work', Human Resources, October 2007,
pp. 29-32. Back
51
Taylor, op cit. Back
52
Michael Fitzpatrick, 'Mobile that allows bosses to snoop on staff
developed', BBC News, 10/03/2010, available at: http://news.bbc.co.uk/1/hi/8559683.stm,
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53
The application effectively harnesses and commodifies the personal
information volunteered by employees as part of their social networking
activities and brings it to bear on the relationships and opportunities
they have at work. Back
54
See: http://www.fas.org/irp/dni/datamining.pdf, accessed 15/06/10. Back
55
Such as the CIA's purchase of a stake in Visible Technologies
Inc., a firm which specialises in monitoring new social media
such as blogs, micro-blogs, forums, customer feedback sites and
open social networking sites; see: Noah Shachtman, 'U.S. Spies
Buy Stake in Firm That Monitors Blogs, Tweets', Wired, 19/10/09,
available at: http://www.wired.com/dangerroom/2009/10/exclusive-us-spies-buy-stake-in-twitter-blog-monitoring-firm/,
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National Police Improvement Agency, Practice Advice on the Managements
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Her Majesty's Chief Inspectorate of Constabulary, Adapting to
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Ian Johnston, 'Peaceful protesters included on police database
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Paul Lewis and Rob Evans, 'Activists repeatedly stopped and searched
as police officers "mark" cars', The Guardian, 25/10/09,
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Paul Lewis, Rob Evans and Matthew Taylor, 'Police in £9m
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Crowdsourcing describes the outsourcing of work to a wide group
of people, usually via an open call or competition; see Jeff Howe,
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Mark Ballard, 'Home snoop CCTV more popular than Big Brother'
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Internet Eyes website, available at: http://interneteyes.co.uk/,
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Paul Lewis 'Surveillance cameras in Birmingham track Muslims'
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ICO, What Price Privacy Now?, ICO, 2006. Back
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House of Lords, Select Committee on the Constitution, 2nd Report
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Cabinet Office, Data Handling Procedures in Government: Final
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Cabinet Office, Protecting Information in Government, 2010. Back
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Richard Thomas and Mark Walport (2008) Data Sharing Review Report,
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See the European Commission's 'reasoned opinion' of 24 June 2010
on UK compliance with the Directive, in 'Data protection: Commission
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Charles D. Raab, 'Information Privacy: Networks of Regulation
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