Surveillance: Citizens and the State - Constitution Committee Contents


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 would—and many of us would probably have different views on this—say 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 school—I went to Westminster City School in the 1970s—I 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 because—and this is the way the Germans would argue—knowing 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 policy—we do not have much regulation at the moment—about 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 moment—and it goes back to your question about where this is coming from—is 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 themselves—and that includes all of us here, the academics who study them even in social terms and the bureaucrats involved—usually 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 plates—and we are moving to a position now where the police will hold 50 million records of vehicle movements per day—is 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 countries—and I am thinking of Canada here in particular—Privacy 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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