Examination of Witnesses (Questions 562-579)
Dr Victoria Williams
14 MAY 2008
Q562 Chairman: Good morning, Dr Williams.
May I welcome you very warmly to the committee and thank you for
submitting your written evidence in advance. As we are being recorded,
could you identify yourself for the record?
Dr Williams: I am Dr Victoria Williams
and I am a member of the Bar.
Q563 Chairman: Would you like to
make a short opening statement to add to your written submission
or not?
Dr Williams: I am quite happy to go to
questions. I have obviously handed in quite a lengthy submission.
Q564 Viscount Bledisloe: I wondered
if you wanted to qualify or add to anything that you had said
in the light of the J K Rowling judgment, assuming for the moment
that it is right and upheld, so to speak. I do not mean upheld
on appeal but that when the case actually comes on it is upheld?
Dr Williams: Yes, I would. I made a point
of reading that yesterday. It is a judgment of course that was
given on appeal from the striking out decision.
Q565 Viscount Bledisloe: Yes. That
is why I say let us assume for the moment that it stands.
Dr Williams: Assuming that it becomes
substantive, I believe it is very significant in the context of
what might be described as the reasonable expectation of privacy
in a public place. There is a part of the judgment where the court
considers that it is at least arguable that when going about one's
business, at least as a child, in public but carrying out a private
matter, such as going shopping, one does benefit from at least
a reasonable expectation that one will not be photographed and
then have those photographs used. That is, as I see it, an extension
of the existing principle, which was that if you were photographed
for example with a long lens at a private function, perhaps over
the wall of your garden from a tree, that would be protected,
but this does appear to be an important extension and perhaps
the beginning or the first judicial building block towards a more
generalised right of public privacy, if I can put it that way.
Q566 Lord Morris of Aberavon: If
that is upheld, it is going to be a very valuable and important
extension to a law of privacy, is it not?
Dr Williams: I believe it would be. The
qualification of course is that on the facts of that case it related
to an infant child. The Court of Appeal was careful to make it
clear that those were the specific facts of the case and that
perhaps the adults would be in a different position, but, nonetheless,
it is an important decision. It does point potentially towards,
as I say, the beginnings of a judicial expansion of a right of
privacy in a public space.
Lord Morris of Aberavon: On the facts, it might
not apply to a minister of the Crown carrying papers openly to
No. 10.
Q567 Chairman: In your written evidence,
Dr Williams, you said, and I quote, "law makers need to engage
in significant constitutional review of the basis on which the
state and similar bodies are permitted to observe people in public
space and what rights to freedom from surveillance the public
have in respect of social activity in that space". Could
you say what is the difference between the legal and constitutional
issues that are engaged in the surveillance of a public space
and those that are engaged in respect of the collection of personal
data?
Dr Williams: Yes, and I should start
by saying really that this issue is quite a philosophical one
and necessarily there are overlaps, but as I see it probably the
most obvious practical difference—one has to start with
practicalities I think before one moves to legal matters—between
public and private surveillance, if I can put it that way, is
that public surveillance operates on the space; it does not operate
on the individual. CCTV, for example, watches the entirety of
the town square. It is like fishing with a large net; you catch
whatever passes through that space indiscriminately. Personal
data collection and personal surveillance is more like fishing
with a fishing rod; you are going for the individual fish that
is identifiable. The bridge between those two domains of course
is when you extract from the bigger net the individual and you
extract their personal data from that. As things stand, in the
domain of public surveillance, as I see it, the law does not currently
appear, subject to the Murray case or the J K Rowling case
as it will probably become known, to have developed a set of principles
that deal with or can accommodate the idea that mass surveillance
could have implications for the fabric of society itself and for
the exercise of constitutional rights, such as free speech or
free association and so on. The current framework deals only in
terms of private rights and is essentially lacking in the notion
that when people gather together in public there might be a public
interest in having protected spaces or having any presumption
that you may gather in public space without being watched by the
state. I think that raises the constitutional question of whether
we have sufficient safeguards for Article 10 and Article 11 rights
at the moment—the rights of freedom of assembly, the rights
of freedom of speech and so on—and those are as distinct
from personal data privacy protections.
Q568 Lord Lyell of Markyate: The
public and private distinction is interesting in the court context
where the citizen brings a court case, but much more chilling
is the idea, for example, that your conversations might be picked
up by a parabolic microphone; that this might be done at the instance
of the state; or it might be done at the instance of a business
competitor; or at the instance of a newspaper, which was hoping
to show that you were gay or something of that sort. Ought that
simply to be left to supervision by the courts or ought there
to be some actual legislation which governs who is entitled to
do that kind of thing at all?
Dr Williams: Of course at the moment
we have some legislation. There is data protection legislation,
there is the Regulation of Investigatory Powers Act legislation,
but what we do not have, as I see it, is an overarching set of
fundamental principles laid down by Parliament, which will govern
mass surveillance in that context. There seems to be something
of a free-for-all at the moment, save when one starts extracting
personal data. I have reviewed some of the technologies that are
currently available at the start of my evidence: things like CCTV
that can listen, CCTV that can even arrest the subject remotely
by tazering them essentially based on computerised decision-making.
Of course, we already live in an environment where as one walks
through the City of London of course one's face is recognised;
one's number plate is routinely recognised. Whether or not that
data is processed, it is still there in the system and it could
still be processed. I do suggest that the sheer scale of that
mass surveillance could in itself have a chilling effect on the
exercise of public rights. It could also lead to misuse of course
if it fell into the wrong hands. Of course, the more data that
one gathers, the greater the chance of error, which is always
the possibility, or mistaken identity. The more one automates
decision-making, the greater the chance of error if error creeps
into the database.
Q569 Lord Morris of Aberavon: Is
there an inherent difference between the surveillance in Mr Patel's
newsagent in the morning when you or I go to get my newspaper,
that being a private surveillance of a mass of individuals coming
in one by one, and similar surveillance, a mass surveillance,
which I have seen in the Chief Constable's office in Carmarthen
of what happens on a Saturday night in Carmarthen? Are they not
the same?
Dr Williams: At one level, they are the
same. In a linguistic or perhaps conceptual sense they are the
same, but when the state watches you, when the state's eye is
above you, there is not an equal power relationship between yourself
and the state. In Mr Patel's corner shop you can see Mr Patel
across the counter and it is him watching you effectively by other
means but when the state watches, you do not necessarily know
when you are being watched; you do not know what will happen to
that data; and of course the state has powers well in excess of
those provided to an individual. I do believe that when there
is that power in balance, and it is a matter of degree, perhaps
there need to be additional safeguards directed towards the state
rather than towards perhaps the small shopkeeper engaged in low-scale
surveillance. It is perhaps the nature of the watcher which determines
the difference.
Q570 Lord Morris of Aberavon: If
there was a prosecution, the state can bespeak copies from Mr
Patel's shop and I have seen it done where that very script is
produced in court successfully.
Dr Williams: Yes, it can and of course
in that situation a reason has arisen for the use and access of
that data. There is a legal procedure for obtaining that data
and there is a justification for using it on a one-off occasion.
The state does not go to Mr Patel and say every day of the week,
"Please copy me your tapes".
Q571 Lord Morris of Aberavon: After
the disasters at King's Cross Station and the subsequent bombings,
the police spent hours and hours checking everyone who went through
the station between 9 and 10 in the morning, including my own
wife as it happened.
Dr Williams: I say that is simply a bigger
example of the same phenomenon, though. That is a specific event
that justifies access to that data post hoc, but the state
does not routinely go to Mr Patel, or to anywhere else, and simply
obtain a feed of that data on an indiscriminate basis for its
own purposes; there has to be a justification before it can access
that data, and that process of course does not apply where it
is the state that is watching a public place.
Q572 Lord Rowlands: You refer in
your written evidence to the change in technologies and CCTV for
example. Would you therefore make a distinction that the rather
old-fashioned set of CCTV cameras we have around the place and
that has grown up haphazardly constitutes at present the same
sort of dangers that you anticipate would be occurring with the
new technology or can we say that that generation of cameras did
not in fact infringe our privacy that much and often were properly
demanded?
Dr Williams: Of course we have had CCTV
for a very long time. The early cameras were very poor. I am not
sure how many of the old type of technology cameras would really
be around today. Certainly the City of London would be replete
with fairly high-tech data processing facilities. Again, it is
really a continuum but where images are recorded in digital format
of sufficient quality that they can be processed, cross-matched
and perhaps multiple views taken of an individual so that the
three-dimensional model of that person can then be created for
identity matching, that is an order of magnitude away from the
old-fashioned film cameras and the grainy, 525-line, black and
white technology. It is on the same spectrum but it is an order
of magnitude and at some point, one that is difficult to define,
perhaps we have gone beyond mere television to what amounts to
data collection and that can then be fed into databases. It is
not clear exactly where we have crossed that point but I do feel
we have crossed that point.
Q573 Lord Rowlands: Do you feel that
actually we have crossed it?
Dr Williams: I think we have, yes.
Q574 Lord Rowlands: And therefore,
compared to the first generation of cameras when nobody seemed
to need any authority to establish them, you really now think
there ought to be some kind of specific authority to do so?
Dr Williams: I do because they are so
much more powerful. They provide data of such quality and of course
with cross-linking of state databases and the greater degree of
information flow between different countries and different jurisdictions
we now having using electronic means, the scope for abuse or the
scope for excessive use, which is a kind of abuse I suppose, is
that much greater. Clearly, there is a great deal of international
data processing I am sure going on that would not have been the
case before. We might have had Interpol wiring photographs of
wanted people around the world based on CCTV at the time, perhaps
in the Fifties and Sixties, but one would not have had the instantaneous
exchange of data and the cross-matching of data to databases cross-linked
to phone call records and trees of interconnecting people making
phone calls to one another. I think the way the United States
has moved in this regard rather reflects the change in capacity
of technology and of course their Total Information Awareness
Program, which I think has now been re-named and broken up into
different departments but it is essentially the same programme,
was all about and is all about the cross-linkage of those high-tech
forms of information gathering with the objective of being as
near as possible totally aware of the information internationally
and from the US's point of view nationally as well. That includes
of course presumably our own data to the extent that we would
share it with them. The scope for abuse, for excessive use and,
in the wrong hands, oppression if data fell into the hands of
criminals or other organised groups is an order of magnitude greater
and I think we have crossed that threshold.
Q575 Viscount Bledisloe: In answer
to Lord Morris you said that the state did not regularly look
at Mr Patel's CCTV and films, but there is nothing to stop them
doing so if Mr Patel chooses to give those to the state, is there?
Dr Williams: Mr Patel would be governed
by the Data Protection Act and he would have to consider requests
in accordance with proportionality and so on. He could be ordered
to disclose but it would be a court regulated process if he refused.
Q576 Viscount Bledisloe: He could
not just let the state have them because they say they would rather
like to see them?
Dr Williams: In practice of course he
might. If the state made regular requests, he might not have the
means to oppose that, but strictly in accordance with the Data
Protection Act and the CCTV Code of Practice, one would expect
him to exercise his own judgment and if appropriate refuse and
then be forced, and then the police would presumably have to justify
their request by legal means. The police of course do not have
direct links to Mr Patel's shop, so that his eyes are not the
state's eyes. There is at least that current barrier.
Q577 Baroness O'Cathain: My question
relates again to Mr Patel from the other side. Is there enough
protection to stop the police willy-nilly demanding from Mr Patel
that he should turn over the films from his CCTV camera?
Dr Williams: Inasmuch as if he refused,
they would have to follow a legal process, there is protection,
but of course there is an imbalance of power between any small
individual and the state. It would be difficult to say whether
there is adequate protection without really knowing the reality
or not on the street as to what people in that actual position
feel day to day. They may very well be very grateful for the police
involvement because they probably get a lot of abuse and they
would be more than willing to hand over their CCTV. It is when
it is misused that the problem arises.
Q578 Baroness O'Cathain: I can understand
that but it might not be just for Mr Patel. There might be somebody
in the police with a grudge against Mr Singh at the next newsagents
shop or whatever. Do you feel that the controls which operate
on the police are sufficiently strong to avoid the indiscriminate
abuse of power, so to speak?
Dr Williams: Inasmuch as they would have
to obtain a warrant, that would be a protection. I really cannot
comment on whether it is adequate. I do not think I have enough
knowledge to answer that because I am not experienced on the ground
in terms of that.
Q579 Lord Peston: I do not want to
delay us, but I take it that in order to follow your question
at all we need a legal definition of public space. I do not know
whether there is one. I was a bit worried about Lord Morris on
the railway station. The railway station is a private space; it
belongs to the railways.
Dr Williams: I do not think there is
a legal definition of public space but, on the other hand, one
could readily formulate one in terms of any space to which the
public have free or reasonably unfettered access; in other words,
licensees in a private space like a railway station where the
doors are thrown open to the public and, subject to certain limits,
they are free to come and go. That is essentially a public space.
| 
