Examination of Witnesses (Questions 60-73)
Professor Clive Norris and Dr David Murakami Wood
28 NOVEMBER 2007
Q60 Lord Morris of Aberavon: What
would be your view?
Professor Norris: My personal view is,
given the unfairness that I think currently exists in the system,
I would be prepared to sacrifice my particular bit of privacy
in this to ensure fairness, but I suspect that there are others,
intellectuals and academics, who would strongly disagree with
that position.
Q61 Lord Rowlands: I am trying to
establish whether you can define relevant information. For example,
in his evidence, the Information Commissioner spoke about the
whole business regarding the crime record and what is collected
in there is irrelevant to the actual question about whether you
can or cannot work with children. Is there any way in which we
could devise a system where we could say, "That bureau has
the right to relevant information and we define relevant information
in the following way"?
Professor Norris: I do not know is the
answer. One can see that that would be a response to this problem.
One of the matters which comes into this is that security and
crime control often do seem to trump all other issues. So, one
of the questions would be, what would be the exceptions to the
rule that stopped this? Where would you draw the line?
Q62 Lord Rowlands: For example, would
the fact that I had nine points on my licence be relevant to whether
or not I could work with children?
Professor Norris: It is interesting that
you say that because I am someone who has to sign this for potential
social workers and that is indeed an argument that gets had. I
do not want to say how we resolve individual cases but certainly
there are arguments on the committee which deals with these matters
about whether it should or should not. Some people view that it
should and some people view that it should not. My point is that
it is never very easy to draw the line. We may think that a driving
offence is seen as not being relevant. A driving offence that
maybe severely injured a child would show a recklessness or could
show a recklessness.
Q63 Lord Rowlands: That would be
a criminal offence.
Professor Norris: Okay but being caught
for speeding could have that effect and although it did not have
in that particular case, it would be evidence that it might have.
So, I think that points on the licence could be argued in that
way.
Q64 Baroness Quin: Debates certainly
here in Parliament often are framed in terms of talking about
the balance between security and liberty. It was interesting that,
in your written evidence, the Surveillance Studies Network evidence,
it suggests that talk of balance between security and liberty
is highly misleading because liberty is an integral component
of what makes security for citizens and that, without liberty,
there is no citizenship and there is only insecurity. Can you
expand a little further on that for us.
Dr Murakami Wood: We put this in this
way quite deliberately because there is this tendency to assume
that the balance exists. What we are trying to say here first
of all is that there are not equal quantities of this stuff on
either side that you could take from one part and put in another
part. We exist in a society of a kind of tacit social contract
where we expect to be free and to have those freedoms protected
and the main reason for security is to protect our rights to go
about our daily business unhindered. Where that protection starts
to remove those freedoms themselves, I think that tacit contract
is challenged and it is a tacit contract in this country because
we have no fundamental constitutional protections in the sense
that some other countries have a written constitution. So, it
is particularly important in a country like Britain where a lot
of the contact is tacit. If those things are challenged, we generate
a sense of insecurity and that is very important. Those senses
of insecurity are in fact in some ways all we are left with. This
can, in an extreme form, mean that you lose any meaningful sense
of citizenship because, if you have no belonging, all you are
left with is a sense of security where the state is no longer
guaranteeing those things which you regarded as being part of
that tacit contract. What is left is a void. You have no sense
of citizenship. This case, in an extreme case, lead to that complete
absence of citizenship, and that is an extreme and we have not
reached that point in Britain. The key questions here are first
of all, what is security? What are you arguing is security? What
we are arguing is security from the beginning is that sense of
guarantees for our liberties. Also, it is important to say what
is being secured and we are also arguing that it is vitally important
to consider what is being secured by security. If what is being
secured is ultimately just the state and what the state does,
then, as far as I am concerned, that link with liberty is entirely
lost. It becomes almost meaningless to talk about security if
you are just securing the securors, if you are just securing the
state. I think that it is vitally important and the reason why
we put it in this way is that we are talking about securing liberties,
not about playing off security and liberty. I know that that might
sound like semantics, but I think that it is quite important because
otherwise you allow certain things to be lost and the point is
that there are some things that are always off the scales and
they should not be included in any balance. We should not be putting
everything in the balance. For example, I think that torture is
always off the scales. Our American friends may disagree or some
of them may disagree. Certainly, for us, I think that torture
is always off the scales. You do not weigh up that particular
item in a scale of security and liberty. I think that there are
several other things that we wouldand many of us would
probably have different views on thissay are off the scales.
That is why I think it is important not to say that there is just
this balance. There are things that are not to be balanced and
not to be included.
Lord Peston: May I take us on to the enormous
growth in surveillance in our society certainly over at the age
group of most of the people in this room, we have gone from when
we were young with no concept of surveillance at all. Those of
us who lived in the war had identity cards; I have never forgiven
my parents for losing mine but that is by the way, but that was
about it and there was no such thing as surveillance. A lot of
what we now have is economics driven. We did not have supermarkets
and, if you get supermarkets, you get shoplifting and then you
get surveillance and it is quite clear what the cause is. It is
not a higher propensity for people to be criminals, it is the
fact that you create an environment in which criminality, in this
case shoplifting, becomes the sort of thing one does. To go back
to your class point, all my life middle classes have never regarded
taking things through Customs illegally as a crime; it was regarded
as a game and you always took more than you should through Customs.
Baroness O'Cathain: I certainly did not.
Q65 Lord Peston: So, there is a real
class point here as well as everything else. I did not! Quite
the contrary. Not being middle class, I have always been terribly
frightened of the police and that goes back to another one of
your points. Is the rise of surveillance very much economics driven
is one question, and the other one is, is it supply side driven,
namely firms make the relevant kind of equipment and then naturally
they want to sell it and, for all I know, although I actually
favour ID cards but in a much more limited sense that the Government
are going for, there may a great industry ID lobby that intends
to make billions out of ID cards?
Professor Norris: I would argue with
you in that I do not know that there has been, in the way you
are thinking of, such a growth in surveillance. I think that there
has been a change in surveillance. When I used to come to Westminster
to schoolI went to Westminster City School in the 1970sI
used to get on a train. When I got on to the station, there was
a platform guard and, when I got on to a train, there was also
an end guard on the train, and that was whenever the station was
open. The last time when I went to that particular station at
8.00 in the evening, there seemed to be no-one there at all. There
was a help point which told me that I could press a button and
that someone would answer and that I was being watched by CCTV.
We have changed the nature of surveillance: conciergeship, face-to-face
knowledge about people has changed. You are right in the sense
that we did not necessarily see it as surveillance then. I think
it is only when we have lost it that we understand that this had
a control function often never put into practice because it was
not needed because it was there. I think that is one thing. If
you want to ask why there has been such a growth in surveillance
in this country, one reason is because there has been little to
stop it. The point about the constitution is, if you take, say,
Germany, in Germany within the constitution, there are words to
the effect that people have the right to self-determination and
self-autonomy. One of the things that means is that you can appeal
to the constitution about the presence of a camera because a camera
is seen as reducing your ability to act autonomously becauseand
this is the way the Germans would argueknowing that someone
is watching you in a public space influences your behaviour and
you are less free. That does not mean that you cannot have cameras
in Germany. What it means is that you have to make a special plea
as to why the camera is justified in that circumstance. So, it
creates a brake. In Britain, in terms of cameras at least, there
was no brake to be applied. There was no privacy law. There was
no law to prevent cameras being put up. There was nothing to stop
it and we had no higher appeal: we could not appeal to a privacy
law because it was not there; we could not appeal to a constitutional
principle like the Germans or maybe even the Americans or other
states could. I think that that is very important. I think that,
at a more general level as well, in continental Europe, surveillance
is viewed at the public level with rather more suspicion and as
something that is potentially dangerous. The reason for that is
the experience of in the German state of being taken over by a
fascist regime and then, in European countries, by being invaded
and understanding what actually surveillance could mean for particular
sections of the population, and this notion that a state does
not always act in the interests of its people. When it is being
invaded, the occupying state clearly has mal-intention. I think
that there is a danger in Britain that we see and perhaps with
good regard that our Government are generally benign and have
been. On the continent, they know that their governments have
not necessarily been so benign. I think that we do have to recognise
that the future is an unknown quantity. We do not know what 50
years will bring. Therefore, we need to think about, if we are
setting up systems, what will the consequences be if, in two or
three generations, our rulers are not so benign?
Chairman: I repeat my appeal for reasonable
brevity.
Q66 Lord Lyell of Markyate: I want
to talk about regulation and the improvement of regulatory policywe
do not have much regulation at the momentabout Smartdust,
which I remember you told us about, and about Google Earth. As
I understand it, you could be sitting in your garden and you could
be watched by everybody who had access to Google Earth. Exactly
how accurate it is at the moment we do not know, but I think we
can anticipate that it will become or could become extraordinarily
accurate. Smartdust could be scattered around the dining room
table and all our conversation could be listened to. To what extent
do you think those things should be regulated?
Dr Murakami Wood: This is at the heart
of the matter here and I think that it is absolutely essential
that we develop some ways of regulating these kinds of technologies.
I would like to say how Google Earth is at the moment. It usually
relies on stored satellite images and therefore on the whole is
not conceived as a live image in many countries. In America, I
think that they can produce relatively swift images but certainly
not in most of the world yet, but you are right that this is just
a technical impediment which will be overcome. Things like Smartdust
do present an entirely new challenge because we are not looking
at traditional forms of surveillance that can be seen. We are
talking about all kinds of new technologies that present new challenges.
Here, what we need is for policy to be able to deal with things
that they have not conceived of previously in the past and the
problem at the momentand it goes back to your question
about where this is coming fromis that the other driver
of surveillance in this country is indeed the political economics
driver, the driver of industry. Industries are producing more
and more highly advanced technologies. That seemed to come as
a complete package; it seemed to be a solution to social problems
in a nice, neat technological bundle which is very attractive
to policy makers. Easy solutions are very attractive. The problem
is that the policy makers themselvesand that includes all
of us here, the academics who study them even in social terms
and the bureaucrats involvedusually lag way behind the
technological development in terms of their ability to understand
even how the technology itself works as advertised let alone how
it works inside, inside the black box. If I asked any of you to
tell me how an algorithm works for facial recognition, probably
even those of you who had technical backgrounds might struggle
and I study these things and I struggle sometimes to understand
how a few lines of code can create certain kinds of effects within
a piece of software. We need some very new kinds of regulations
and this requires detailed technical knowledge and it requires
somebody, a regulator or a regulatory body, to be able to say
that this is or is not acceptable, not just an advisory committee
but somebody to say, "No, this is not acceptable and we should
not employ this technology". I think that there is a danger
of us at the moment, especially in Government faced with the dangers
of terrorism of crime, to say, "This technology looks like
the silver bullet, it looks like the one that will solve the problem"
and not consider what the bad effects might be and almost never
to say, "No, that is a step too far" or "We do
not want that" when presented with something that seems to
solve a problem.
Q67 Viscount Bledisloe: In your paragraph
4.2.5, you call for a new and comprehensive Information Act to
create the basis for the information relationship between the
state and the citizen. What would be the principal components
of such an Act and can you give us examples of statutes in other
countries which contain these components?
Dr Murakami Wood: We are asking here
for two things. First of all, to bring together the piecemeal
and existing legislation that we have had in this country for
a very long time. The British way in many ways has always been
to do things gradually and introduce things bit by bit and this
works in a context where things change slowly. We are looking
in a context now where technological change is extremely rapid.
For example, the Data Protection Act is conceived on the basis
of an understanding of the computer that derives from the 1970s.
Even though it was introduced in the 1990s, its understanding
of computing is based on a much earlier period of understanding
of what computers could do. We need to move ahead of the game.
We need to bring together these various pieces of legislation
that already exist first of all and understand their relationship.
For example, the fact that freedom of information should be working
in a reciprocal way with things that deal with surveillance, they
should not be entirely separate domains, they should be connected.
The first thing to do is bring together those existing pieces
of legislation, start to connect them, start to see where the
holes are, to fill those holes and then to go further and to actually
start to think in terms of the future about what might occur and
how we might legislate for things that are now being developed
or will be developed. Most importantly of all, this is about setting
a framework for how Government and citizens should exist in the
information society. We still have not really done this. Japan
started to do this in the 1980s; they started to consider these
issues and never really went that far but Japan started to do
that. We never did. In the absence of conventionally understood
constitutions, I think that this stage is a good time to take
stock and to establish these new kinds of fundamental relationships
between citizens and Government in an information society. So,
understanding the information rights of citizens and understanding
what information means to people.
Professor Norris: The other thing here
is that if we say that personal data primarily should belong to
the person in whom it originated, then what is the relationship
between that person and the state's holding of it and how can
that person audit the information that the state holds on them?
I think that this becomes absolutely critical when that information
is obtained without somebody's consent, that is without their
voluntary consent. For instance, the DNA register is not a voluntary
consent piece; you are coerced into giving your DNA for that.
Similarly, CCTV cameras that record your number platesand
we are moving to a position now where the police will hold 50
million records of vehicle movements per dayis non-consensual.
We have not consented to this act. I think as a citizen that,
if the state is holding my personal information, the state should
have a responsibility for demonstrating to me that it is accurate,
that it is fair and that they have collected this information.
How one manages that is problematic but I think that it is implied.
These are things that we think an Information Act would have to
start to grapple with and have some fundamental principles involved.
However, neither of us are legislators and we would not say that
we know that answer.
Q68 Lord Rowlands: Following on that,
if a bill came forward on any new Information Act, what would
you say about the Information Commissioner's powers? You call
him an effective but shackled regulator. How would you unshackle
him or how might he be unshackled?
Dr Murakami Wood: What we meant by this
first of all is that we regard the current Information Commissioner
as being an extremely active and effective regulator who has gone
in some ways way beyond what he needed to do and has indeed sparked
this whole debate in the first place. He is shackled in the sense
that his powers are limited and indeed the powers of his office
are limited. We would first of all see a requirement for a huge
increase in resources for the Information Commissioner's Office.
We would see the Information Commissioner as being the primary
regulator of any kind of new information and in fact not just
to be provided with the powers of inspection and prosecution that
he would need for the state but also for private companies. I
think that this is absolutely vital; we are talking about these
vast new conglomerates of information like Google, Tesco Clubcard
and so on. These need to be subject to inspection as much as the
state and the state certainly does. Also, there should be not
just a reactive set of powers but we would also like to see an
active responsibility for the Information Commissioner to be not
just a statutory consultee as is suggested here, but to have the
right of veto over new technological developments. What I mean
by that is that in several countriesand I am thinking of
Canada here in particularPrivacy Commissioners are able
to specify where or if certain kinds of technologies or systems
are implemented. If we are going to have the technological expertise
to assess these new things, these need to be vested in an authority
which is trusted and which has a statutory function and I think
that the Information Commissioner's Office would indeed be the
place to put these functions.
Q69 Lord Rowlands: It sounds like
a large, new empire in some ways. Some of them would become a
sort of look-alike from ...
Dr Murakami Wood: We have, for example,
the National Audit Office when it comes to financial issues like
this which is indeed a very large organisation and it has large
responsibilities. I would suggest that in fact information is
as important as finances for government and for governance and
the relationships between citizens and government in the future
and therefore it should be taken as seriously, funded as well
and regarded with the same degree of statutory authority.
Q70 Baroness O'Cathain: How worried
do you think the general public is about surveillance? How satisfactory
is the public knowledge of surveillance or do they actually want
to know about it because most people now exchange all this information
on Facebook and the Internet and bringing the National Audit Office
into it when you ... It is quite a different subject. You could
not control something that is blowing around in the ether throughout
the world.
Professor Norris: I think that we have
a serious job in educating our children about the dangers of some
of their practices. Because children are doing this does not mean
that it does not bring dangers. I have a son who uses Facebook
and so forth and it clearly worries me about the level of personal
information that can be obtained. I do not think that just because
they do it that we should say that it is okay because I am not
convinced that it is and I think that we have a duty in some senses
to create structures to protect youth from such follies.
Q71 Baroness O'Cathain: Let me pursue
that. What sort of structures could protect people, because of
the very nature of Facebook and the Internet and all this area,
and dating agencies on the Internet?
Professor Norris: I think a growing awareness
of the danger of allowing your personal information to circulate
freely. There are ways of dealing with this.
Q72 Baroness O'Cathain: How?
Professor Norris: For instance, the conversation
that I had with my son last week was to suggest that he did not
disclose his real date of birth, that he lied on his Facebook.
You can do that.
Q73 Chairman: Dr Murakami Wood, would
you like to come in for the final word.
Dr Murakami Wood: What is important to
remember with these kinds of systems is that they have only been
around for three or four years. We are talking about incredibly
new phenomena and these people are being very naive and it is
not just children. There was the case recently of a senior police
officer who was also giving away large amounts of personal information.
Professor Norris: He is the Head of the
Security Service.
Dr Murakami Wood: He was giving away
plenty of personal information on his social networking site.
A number of people are very naive about these kind of systems
and we have to remember that this will not be the final condition,
if there is such a thing, of these systems in the future and that
we will learn and in fact we will have to learn very soon. If
you combine this with the issues we have seen in the last couple
of weeks of the loss of 25/26 million people's data by Revenue
and Customs, our naivety about the amount of information and how
it is used out there has to come to an end very soon and it will
do. I think that we are seeing the emergence slowly of what we
are calling personal information economies where people start
to take more charge of their person information, to realise its
value and to take steps to protect it. We are seeing the rise
of people like information brokers who will look after your personal
data for you and create a better profile for you and people using
things like credit referencing agencies to start to manipulate
positively their data image on the web. I think that we will see
a growth of knowledge. This will not be the final state but it
is a very dangerous time and I think this is why we need this
new set of legislation and why we need to take some responsibility
when acting at this dangerous time.
Chairman: Thank you very much. Professor Norris
and Dr Murakami Wood, may I thank you both very much on behalf
of the Committee for being with us and for your evidence.
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