From the itemised records of the 90s through to the detailed records of our online behaviour, it is getting easier to track what we do. There is vastly more information now about our every movement than there ever has been.
Such information can be very useful to law enforcement agencies and other public bodies. There were 494,078 requests for ‘communications data’ under the Regulation of Investigatory Powers Act in 2011.
Some of the information about our connected lives is not legally available to law enforcement. Much of it, for example information from social media or our web histories, can be incredibly intrusive. It can reveal intimate details, including where we have been, what we have done, what we believe and who we know.
Through mistakes or abuse, the use of such information can lead to anything from wrongful suspicion through to the settling of scores. Merely the knowledge that what we are doing or saying is being tracked can have a chilling effect.
Just because information is useful to law enforcement does not mean that the state, or law enforcement agencies, or public bodies should be able to order its collection or have access to it. Our privacy rights are essential to ensure that we do not give away the power to collect and use information too cheaply.
The Government’s recent proposals, in the form of the Communications Data Bill, are a manifestation of the temptation to grab data where it exists, and of a failure to consider alternatives to blanket collection and retention of data.
Communications surveillance is a useful exercise. But we ask only that it be placed under the rule of law to ensure the effective and accountable use of what are significant powers.
Combined, the articles in Open Rights Group’s Digital Surveillance report add up to a call for more targeted, more transparent and more accountable surveillance laws. The authors offer a number of useful recommendations for how to achieve this.
Angela Patrick examines the case for judicial oversight in Chapter 2. She notes that oversight is extremely important where surveillance or data access is kept secret from the person investigated.
Caspar Bowden recommends a policy of ‘data preservation’ rather than blanket data retention. He suggests this could include quick response and emergency processes, and means to intelligently and accountably identify targets. He recommends a unified Surveillance Commissioner capable of carrying out a strong, independent audit with “multi-skilled investigators including human rights and computer experts.”
Joss Wright recommends such audits be supported by stringent penalties for misuse of either powers or data, and for greater transparency. Simone Halink recommends building user notification into surveillance law, which would require “individuals to be notified by default of a decision authorising the request for their communications data by law enforcement.“ Delays would be appropriate in exceptional circumstances.
Rachel Robinson of Liberty recommends lifting the ban on the use of intercept evidence in court. Sam Smith of Privacy International recommends investing in law enforcement’s capacity to use and analyse the data already available to them.
Peter Sommer recommends a more overarching review, potentially through a Royal Commission, to properly study surveillance in the digital age.
There is no shortage of ideas that could help inform policy makers’ thinking on surveillance in the digital age. There are other useful resources too. In particular the Draft International Principles on Communications Surveillance and Human Rights, which was put together by a number of civil society groups, provides a “framework against which we can evaluate whether current or proposed surveillance laws and practices are consistent with human rights”.
This includes principles such as user notification, transparency and safeguards against illegitimate access. As Simone Halink points out in her contribution to chapter five, the government’s current proposals fall short when assessed against such principles.
In providing context and recommendations, the articles in this report offer a basis for a conversation about proportionate surveillance laws in the digital age. They are designed to help inform the ongoing policy debate sparked off by the Government’s draft Communications Data Bill and the subsequent inquiry by the Joint Committee.
In urging policy makers to consider these options, we are not picking sides or “putting politics before people’s lives”. We hope instead that the report makes policy makers aware of the many options available as they look to build privacy-friendly and effective surveillance law.