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http://ukhumanrightsblog.com/2012/04/06 ... a-patrick/The dangers of data snooping – Angela PatrickApril 6, 2012 by 1 Crown Office Row
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Late last year, JUSTICE published its own call for the modernisation of surveillance in the UK, including the controls on communications data. In Freedom from Suspicion, we call for operation for wholesale reform of the Regulation of Investigatory Powers Act 2000 (“RIPA”), to improve transparency and accountability and to ensure a proportionate balance is struck between the need for legitimate surveillance and the individual right to privacy.
Reviewing the criticism of the previous proposals to expand communications data surveillance, it would appear to apply equally to recent leaks:
* The Government rightly makes the distinction between “communications” and “communications data”. Traditionally this distinction was simple and easy to understand: a letter was communication; the information on the envelope, communications data. However, expanding technology means that communications data related to digital communication is increasingly more complex, provides more information about individuals and difficult to detach from the substance of any exchange. Even if the two can technically be separated, which has been called into question, as the Information Commissioner has cautioned, “you can tell an awful lot about some people’s circumstances from the people they are talking to and the websites they visit” (Freedom from Suspicion, paragraphs 182 – 186)
* The Home Secretary and the Prime Minister assure us that the Government will only use expanded powers for the limited investigation of legitimate threats. However, the arrangements for the storage of information about where we go and what we do on the web engage our right to respect for privacy. That the Government may not wish to access this material doesn’t automatically render that storage proportionate and necessary. Expanding the arrangements for storage must be justified. Whether Government access to that information can be justified, and if so, what safeguards are appropriate is a distinct issue. As the Information Commissioner has warned, expanding powers to access everyone’s information creates a “step-change” in the relationship between the State and the individual. Is this change justifiable? When the Government may be looking for the proverbial needle in a haystack, will expanding the haystack actually be counterproductive? Freedom from Suspicion, paragraphs 172 – 181
* The existing powers which public authorities have to access communications data are extremely broad, and accompanied by very few safeguards. If any public authority seeks communications data now, they must persuade a colleague in their organisation that they believe it is necessary to act (RIPA, Section 22). The Protection of Freedoms Act will require local councils to check with a judge, but other bodies, including for example, the Charity Commission, the Food Standards Agency and the Pensions Regulator, remain free from scrutiny Freedom from Suspicion, paragraphs 149 – 171).
Unfortunately, the leaked plans fail to address the underlying failings inherent in RIPA. At the heart of JUSTICE’s concerns is a simple question: shouldn’t most surveillance – including communications data requests – be subject to prior judicial oversight?
...Angela Patrick is Director of Human Rights Policy at JUSTICE
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