ICO's Surveillance Society follow up report - read it and sleep - 17/11/2010

On Thursday (11th November) the Information Commissioner's Office (ICO) published a report to parliament on the state of surveillance in the UK [1]. The report contains an update from the Surveillance Stuides Network [2] to their 2006 'Report on the Surveillance Society' [3] (also written for the ICO).

The report should have been a dire warning about the growing levels of surveillance and at times it does try to highlight worrying trends, but the language is so couched in parliamentary deference that at best it lacks any bite. At worst, it acts as an apologist for the continued spread of surveillance. The previous Information Commissiomer, Richard Thomas warned that the country risked sleepwalking into a surveillance society - this report by the new commissioner risks putting the country to sleep.

Fog on the Tyne

The report contains an "Information Commissioner's perspective" section that reveals why the language is so tempered. Referring to the Surveillance Studies Network report the commissioner tells us:

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.

An example of such fog came from former Prime Minister Gordon Brown when he gave a speech to the Institute of Public Policy Research (IPPR) about 'Security and Liberty' in 2008 [4]. Brown claimed that CCTV had been a success in cutting crime in Newcastle Upon Tyne but he forgot to mention a few minor details. Like the fact that in a detailed report on CCTV in the UK - 'Effects of Closed-Circuit Television on Crime' (Home Office Study 252) the effect of CCTV on crime in Newcastle was described as "undesirable". In Newcastle, total crime fell by 21.6% in the area with cameras but by 29.7% in the area where there were no cameras!

Fog can also come from scaremongers too, such as when the Daily Express newspaper last year claimed that there were: "plans to put 20,000 problem families under 24-hour CCTV super-vision in their own homes" [5]. However such fog can easily be lifted through careful fact checking, which in this case revealed that the Express had confused an announcement of 'Family Intervention Projects' with CCTV in families homes. If groups like No CCTV are capable of and interested in fog clearing [6], then surely parliamentarians and regulators, not to mention the media, should be too.

Clearly there is a need for accurate information and a proper debate on the issues surrounding the Surveillance Society and this is highlighted:

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.

But if people are sleepwalking then they need waking up. Increasing state and private sector surveillance has very serious implications for the freedoms of us all. The ICO's report does not take a stand and in doing so it takes a stand. Earlier this year the British journalist Robert Fisk spoke at AUT University, Auckland about the state of journalism [7] and he referred to the problem of "50-50 journalism", whereby both sides are represented in a story as though it were a football match. Fisk asserted that journalists ought to be "objective and unbiased - on the side of those who suffer". Surely the ICO and the Surveillance Studies Network should similarly be "objective and unbiased - on the side of those who suffer", in this case those who would be surveilled.

Surveillance Studies Network Update

The bulk of the report is made up of the Surveillance Studies Network (SSN) update on surveillance since their 2006 report. The SSN is at great pains to state that "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." Yet no definition is given of what constitutes a police state. The Cambridge Dictionary defines a police state as "a country in which the government uses the police to severely limit people's freedom". Whilst the Oxford English dictionary opts for: "a totalitarian state controlled by a political police force that secretly supervises the citizens' activities". Surely either of these definitions has resonance in the UK where the proliferation of CCTV cameras continues, where a network of Automatic Number Plate Recognition (ANPR) cameras can be used to track the movement of citizens and where surveillance drones are being developed by police and government agencies, and where those that make the decisions to roll-out such technologies are neither elected by, nor accountable to the people. Or is that just yet more hyperbolic fog?

In reviewing their 2006 report the SSN reminds us that trust is a major casualty of the surveillance society, when they point out: "One of the biggest effects of surveillance processes and practices is to create a world where we are not really trusted." This fundamental issue of trust is one that is often left to one side in discussions of CCTV cameras, but it is crucial to understanding why cameras increase distrust between people and promote fear of crime.

CCTV and the remarkable anomaly

On CCTV the SSN points out that: "Visual surveillance through CCTV is perhaps the image most people have in mind as denoting what 'surveillance' means." They point out that the use of CCTV has become even more widespread, before making the following understatement:

Yet its relative ineffectiveness in achieving its objectives, despite its public and political support, has remained a remarkable anomaly.

Indeed it is a "remarkable anomaly" and in a footnote to this anomaly they draw attention to the Campbell Collaboration report [8], which found that CCTV schemes in city and town centres and public housing as well as those focused on public transport "did not have a significant effect on crime". But the report goes on to discuss CCTV as though the anomaly does not exist.

CCTV in schools

The SSN highlights the growing use of CCTV in schools and references the excellent work done by Emmeline Taylor whose research paper 'I spy with my little eye: the use of CCTV in schools and the impact on privacy' [9] was published earlier this year. The report states:

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.

Here the report does at least go on to warn that the issues surrounding surveillance in schools are likely to intensify "if private sector management of state schools spreads, as the Government intends".

ANPR cameras and function creep

On Automatic Number Plate Recognition (ANPR) cameras the SSN report states (with quotes from the Association of Chief Police Officer's (ACPO) ANPR Strategy 2007-2010 [10]):

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’.

Without questionning the appropriateness of this "progress", the SSN goes on to highlight the function creep that has occured since ANPR systems were allegedly being introduced to help identify vehicles that are incorrectly registered, untaxed or uninsured. The report says:

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 involve in criminal activity, are tracked.

So despite acknowledging that all vehicles are tracked, the SSN report does not explore the implications of an ANPR network of 10,000+ cameras that are now, according to ACPO's ANPR Strategy, embedded "into core police business" throughout the UK. No CCTV has pointed out elsewhere that this network acts as an automated checkpoint system [11] that has no place in a democratic society. No mention is made of the agenda to expand the ANPR network under 'Project Columbus' [12] or the innacuracy of the databases behind the cameras.

Vehicle-borne jokes?

It is not clear whether the SSN report is making a sarcastic comment, cracking a joke, or has forgotten how long ago the car was invented when, with regard to the police use of data gathered by Transport for London's (TfL) congestion charge ANPR cameras, they write:

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.

The ridiculous mantra "vehicle-borne" terrorist/terrorism was repeatedly used by Home Office ministers in 2007 [13] to ramp up fear and justify the removal of freedom in the bulk transfer of ANPR data from TfL to the Metropolitan Police Service. What even is "vehicle-borne terrorist activity"? By not putting this Home Office/Police catchphrase in quotes the SSN might lead one to believe that they have bought into the hype that because some criminals can drive, if we deny drivers use of the roads we will deny criminals use of the roads - and that that's okay. In fact the SSN report goes on to state that the function creep with regards to TfL's congestion charge ANPR cameras is "arguably legitimate and beneficial", it states:

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.

This was, and is, a highly controversial expansion of surveillance which they treat like the "50-50 journalism" highligted above. In 2003 Privacy International awarded Big Brother Awards to Ken Livingston, the mayor of London who introduced the congestion charge, and Capita the company that ran the congestion charge at that time [14].

In a 1998 report 'Data Protection Law and on-line Service' [15] US privacy law professors Joel R. Reidenber and Paul M. Schwartz reveal the position of the National Commission for Information Technology and Civil Liberties (CNIL) in France, which is the supposed equivalent of the UK's ICO. It is interesting to compare the views of the CNIL with the weak views in this ICO report, Schwartz and Reidenber state:

The CNIL rejected, for example, a proposed intelligent transport system in part because of the reliance on collecting and tracking data matched by license plate number. The CNIL’s position emphasized the right of citizens to travel anonymously on public roads.

ANPR and surveilling protestors

The SSN report highlights the use of ANPR cameras to monitor protestors, but in highlighting the obvious problem with surveilling the movements of people exercising their democractic right to protest the report suggests that using ANPR to identify those without insurance or road tax is not contentious, simply brushing aside the issues of the accuracy of the databases used and the erosion of anonimity and the principle of innocent until proved guilty. The report states:

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' and maintains a database of individuals identified as a potential threat.

The SSN report also highlights the use of ANPR along with the Regulation of Investigatory Powers Act (RIPA) authority to place an "electronic moat" around a town centre as described in a 2009 National Policing Improvement Agency (NPIA) document [16]. The SSN report says:

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.

But when the SSN report tells us that the sharing of TfL's congestion charge ANPR data with the police "is arguably legitimate and beneficial", they go on to say: "So, too, would be the use of ANPR in the case of violent protest." Here they appear to be saying that the aims justify the means. ANPR was introduced without debate, public consultion or legislation. Surely the whole system is legally questionable to say the least. But don't bother looking in this report to find a discussion of these issues.

Project Champion - can ANPR be racist?

The SSN report does mention the Project Champion cameras in Birmingham (now scheduled for removal) but chooses to focus, as has much of the mainstream coverage, on the racist nature of the scheme. The report says:

In Birmingham, for example, ANPR systems are used disproportionately – 3 times more – in areas where there is a concentrated Muslim population.

Can cameras really be racist? Focussing purely on the discrimination element of Project Champion is dangerous. In 2004 when detention without trial of foreign nationals was challenged in terms of discrimination, rather than the fundamental issue of administrative detention, the detention of foreign nationals was replaced with Control Orders, which allow indefinite house arrest for British and foreign national suspects alike. Shouldn't we challenge the placement of ANPR cameras in a residential area, regardless of how many were placed and which group of people they target?

The SSN report goes on to declare that following the furore over Project Champion "the Home Secretary declared that ANPR as a whole should be placed under statutory control". But there have been calls for ANPR to be placed under statutory control for many years - in 2004, following an ANPR trial, the then Home Secretary David Blunkett wrote that experience gained in the pilot: "is likely to lead to the introduction of ANPR enabling legislation as soon as Parliamentary time allows" [17]. Now that the ANPR network has been constructed shouldn't we be a little more critical of the government's desire to restrospectively make the system legal?

The challenge of drones

The SSN report does view the moves towards using surveillance drones or Unmanned Aerial Vehicles (UAV) as a worrying development though it fails to draw enough distinction between Micro-UAVs and the large BAE system HERTI UAVS that are being tested in conjuction with the South Coast Partnership. The report states:

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.

At least here they do use the phrase "surveillance control", as though such technologies should be limited. The report goes on to highlight the function creep that the use of UAVs by police represents, it states:

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.

The report expands on this by looking at privacy problems associated with drones, it states:

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'.

The "there is no such thing as privacy, get over it" argument is what we have come to expect from social networking/datamining companies and a certain search engine company that shall remain nameless. It is particularly disturbing that the very people who are meant to be independently safeguarding our privacy do not understand that your right to privacy/anonymity does not depend on where you are.

On the use of drones for the 2012 Olympics the report suggests:

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.

Closer investigation would have shown that the police are to opt for the BAE system GA-22 airship for the 2012 Olympics because Civil Aviation Authority(CAA) clearance for larger UAVs is proving difficult to obtain. In fact even the GA-22 airship has not yet been given CAA clearance [18]. Research conducted by No CCTV suggests that there is a large UAV industry driven agenda to introduce widespread use of UAVs (unless stopped before then) between 2012 and 2015 (No CCTV will be releasing a UAV report soon).

Regulation, regulation, regulation

The final part of the SSN report looks at 'Regulatory Developments and Problems'. This should come as no surprise as the report was commissioned by the ICO, however it is still disappointing that the SSN places so much faith in regulation. Regulation does not address the core issues of removal of personal freedom, anonymity and other rights. It simply endorses acceptance of surveillance technologies by formalising their "proper use" and leaves no room for the rejection of such technology.

On the regulation of CCTV the SSN report states:

A new Code of Practice for CCTV was adopted in 2008. 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.

When No CCTV and Privacy International complained to the ICO about the citizen spy CCTV game Internet Eyes [19] and made reference to the above mentioned Code of Practice we were told that the code is guidance rather than express legal requirements. When we drilled down further into the detail of the Data Protection Act the ICO dismissed our concerns. In other words the Code of Practice is worthless and the regulators enforcement of the feeble Data Protection Act is practically non-existant. Interestingly the ICO report was released just over a week after several civil liberties groups declared that the ICO is 'not fit for purpose' [20].

On the forthcoming regulation expected from the government it is interesting to note what the SSN report suggests with regard to "a more rigorous regime of law, supervision and enforcement" of surveillance in general:

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.

Data Protection expert Chris Pounder pointed out on the Amberhawk Training blog earlier this year [21] that a link already exists between the Data Protection Act and Article 8 of the Human Rights Act (the right to privacy) but that the ICO has been reluctant to enforce the link. Furthermore the Regulation of Investigatory Powers Act (RIPA) "was designed to ensure public authorities would comply with the European Convention on Human Rights, particularly the right to privacy in Article 8, when they used covert investigatory techniques” [22].

Article 8 rights can be removed "in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others" [23]. A pretty large space in which the state can conduct privacy busting surveillance.

In September Francis Hoar, a barrister specialising in criminal law wrote an article for the Big Brother Watch website entitled 'Does the Human Rights Act really protect our freedoms?' [24] in which he pointed out that:

we must remember that the ECHR [European Convention on Human Rights] was designed not for nations with a long tradition of judicial independence but for a continent ravished by war, most of whose nations were emerging from decades of dictatorship – a role repeated after 1989 as former Warsaw Pact and USSR Republics joined the Council of Europe. Thus, the ECHR is no more than a minimum standard for countries with diverse judicial systems and a hugely divergent history of fairness in criminal and civil proceedings.

Is it actually the case that the HRA has allowed the last government to plead its respect for human rights knowing that the ECHR was ill equipped to protect common law standards unique to Europe in the British Isles? If that is so, should we think again about the fundamental standards to which all governments should be tied?

It looks likely that the government's promise to further regulate CCTV will simply be yet another restating of Article 8 of the ECHR – a meaningless gesture to silence mainstream critics. Surely it is the common law principles which govern protection of our privacy that we should all be working to uphold.

This report was written for a toothless regulator, in an age when much of the discussion surrounding rights and freedoms takes as its starting point the presumption that rights never existed in the UK before the ECHR and the Human Rights Act. This presumption is both false and absurd. The problem then as now is not whether rights exist, it is whether the state respects them.

If there is one lesson to be learnt from the ICO/SSN report it is that we cannot leave the responsibility of protecting our freedoms to parliamentarians or their regulators. Now, as in the past, we must all fight to uphold and protect our freedoms.

Endnotes:

Posted in Anti-CCTV general - 17/11/2010

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