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Overlooked: Surveillance and Personal Privacy in Modern Britain

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Overlooked: Surveillance and Personal Privacy in Modern Britain Overlooked: Surveillance and personal privacy in modern Britain Gareth Crossman with Hilary Kitchin, Rekha Kuna Michael Skrein and Jago Russell Overlooked: Surveillance and personal privacy in modern Britain Gareth Crossman with Hilary Kitchin, Rekha Kuna Michael Skrein and Jago Russell Acknowledgements I would like to thank those who have offered advice and support during the course of this work. Particular mention is due to the project’s academic mentor Professor Charles Raab whose many suggestions have proved invaluable and to Andrew Phillips who has supported this work throughout. Many others have offered their expertise and I would particularly like to thank Madeleine Colvin, Caspar Bowden, Jonathan Bamford, Simon Watkin, Phil Booth, Antony White QC, Alan Hawley and Colin Greene. Thanks to the Nuffield Foundation for their sponsorship and funding of this work. To former and present staff at Liberty to numerous to mention for their endless patience and to Sabina Frediani, Lee Rodwell and Jen Corlew for their editing abilities. My sincere thanks and gratitude go to Liberty’s Director Shami Chakrabarti for her unflinching support and wise counsel throughout. Gareth Crossman October 2007 The Nuffield Foundation is a charitable trust established by Lord Nuffield. Its widest charitable object is ‘the advancement of social well-being’. The Foundation has long had an interest in social welfare and has supported this project to stimulate public discussion and policy development. The views expressed are however those of the authors and not necessarily those of the Foundation. Authors Gareth Crossman is Liberty’s Director of Policy. Hilary Kitchin is a Policy Analyst with the Local Government Information Unit. Rekha Kuna is an Associate Solicitor at Reed Smith Richards Butler LLP. Michael Skrein is a Partner at Reed Smith Richards Butler LLP. Jago Russell is Liberty’s Policy Officer. Research assistance: Kirsteen Shields, Dawn Sedman, Caoilfhionn Gallagher and Gaby Johnson. Overlooked: Surveillance and personal privacy in modern Britain i Overlooked: Surveillance and personal privacy in modern Britain The last few years have been a difficult time for the protection of fundamental rights and freedoms in the United Kingdom. The misnamed and misjudged “War on Terror” alongside other authoritarian tendencies going even further back, have fostered a rather cavalier, almost “year nought” approach to long-held values in the oldest unbroken democracy on Earth. At a time, when some people seem ready to compromise over absolute rights such as the prohibition on torture and fair trial rights such as the right to be charged and tried before lengthy imprisonment, how much more vulnerable is the more qualified or balanced right to respect for our personal privacy? So at a time of “extraordinary rendition” and arbitrary punishment and detention, why should intrusions into personal privacy matter? Isn’t this a somewhat trivial concern in the greater scheme of things? The answer lies in the basis of democracy, rights protection and the essence of humanity itself. As proponents of human rights, Liberty believes that every individual human life is so inherently precious, that it is to be treated with dignity and respect and subject to the values of equal treatment and fairness. The very moment that human beings form relationships, families and other associations, let alone complex modern societies, privacy becomes necessarily qualified. Without some proportionate and lawful intrusion, other vital concerns such as free speech, ministerial accountability, tax collection, child protection, let alone public safety would be impossible to pursue. Nonetheless, a society which does not pay sufficient regard to personal privacy is one where dignity, intimacy and trust are fatally undermined. What is family life without a little bit of personal space around the home? How do you protect people from degrading treatment (whether in hospital, prison or the home) without paying regard to their privacy? How are fair trials possible without confidential legal advice or free elections without secret ballots? Equally, whilst free speech, law enforcement and public health are often seen in tension with personal privacy, think of anonymous sources, vulnerable witnesses and terrified patients who may be more likely to seek help if their confidences are safe and perceived to be so. II Overlooked: Surveillance and personal privacy in modern Britain Notwithstanding, the casual legislative attitude to privacy in recent years, the British public is rather more troubled. A YouGov poll commissioned by Liberty in September of 2007 showed 54 per cent of those questioned did not trust government and other public sector authorities to keep their personal information completely confidential. Forty-eight per cent think that these authorities hold too much of their personal information and 57 per cent think that “the UK has become a surveillance society”. One problem with privacy protection in this country is perhaps that too much has been left to the courts and not enough delivered by our politics. A two-sided litigation battle may be a good protection of last resort for the torture victim or the prisoner detained without law. Our courts have been strong and right in protecting individuals suffering the gravest violations of fundamental rights from policies based on overblown communitarian rhetoric. They have proved less effective in conducting the complex balancing acts necessary when personal privacy is at stake. When a young man appears in court complaining that his DNA is to be held indefinitely on a national database though he has never been charged, let alone convicted of a criminal offence, our courts have been too ready to see this as a matter of irritation rather than intrusion, when set against public interest arguments relating to crime detection. We would argue that the value of privacy is as much a societal interest as public protection. Behind the young man in this example sit thousands of others and an important aspect of the flavour of our democratic society itself. In a legal system essentially without “class actions”, to view the argument as involving a light touch interference with one person versus sweeping societal benefit, is to miss the value of privacy and to set up a David and Goliath struggle with, in the absence of divine intervention, privacy and dignity as inevitable losers. Gareth Crossman is the Policy Director of Liberty (the National Council for Civil Liberties), and one of the foremost experts on the law, ethics and practice of privacy protection in the United Kingdom. My outstanding colleague has completely transformed Liberty’s policy reputation and influence in Westminster, Whitehall, and broader civil society. His background as a solicitor and journalist have produced an ethical brain which neither fears nor indulges the twin evils of legal and technological jargon that stand between so many people and proper debate about how best to protect their personal privacy. This work has been four years in the making. It is reasoned, reasonable and well- researched. Liberty and the Civil Liberties Trust are proud to present this as a powerful piece of advocacy of a democratic value that has been overlooked for too long. Shami Chakrabarti Director of Liberty October 2007 Overlooked: Surveillance and personal privacy in modern Britain iii Contents Page No. Executive Summary 1 1. Introduction 5 Gareth Crossman Different Aspects of Privacy The scope of work 2. Introduction to Surveillance 15 Gareth Crossman 3. Targeted Surveillance 20 Gareth Crossman Introduction Interception of communications Other forms of targeted surveillance Encryption under RIPA Conclusion 4. Visual Surveillance 35 Hilary Kitchin The position in 2007 The regulation of visual surveillance Durant v Financial Services Authority International Comparisons Misuse of Surveillance data Options for the future Debating the future of visual surveillance iv Overlooked: Surveillance and personal privacy in modern Britain 5. Mass data retention: Identity Cards and the Children index 47 Gareth Crossman Introduction The National Identity Register and Identity Card scheme Public attitudes History The Act The Register ID cards Access to the Register Privacy Safeguards The future The Children Index 6. The National DNA Database 66 Gareth Crossman and Jago Russell Sampling powers Retention of samples Voluntary DNA samples Uses of DNA samples 7. Privacy and the Media 73 Rekha Kuna and Michael Skrein Introduction Overview of the current position Shortfalls in the current position Recommendations Conclusion 8. Conclusions 104 Gareth Crossman Introduction The legislative framework Findings Recommendations Overlooked: Surveillance and personal privacy in modern Britain 1 Overlooked: Surveillance and personal privacy in modern Britain Executive Summary The past decade has brought many threats to personal privacy. However, over the last two years in particular, growing nervousness in Westminster, the media and wider public opinion suggests that the time may be ripe for broad and balanced debate about this important democratic value. The contrast between the final years of the 1990s and the start of the current decade is marked. The right to respect for privacy became enforceable in UK courts as recently as October 2000 via the Human Rights Act 1998. However the political context at the time gave privacy a difficult inception. The murder of Jamie Bulger in 1993, and the subsequent use of CCTV to help identify
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