Year: 2015

Jumping on the charity bashing gravy train.

Returned from holiday to a mountain of mail. Usually this is good fun but recently it’s turned into a nightmare of more and more charity mailings. First off today was British Heart Foundation. A good cause and I walk voluntarily into their charity shops regularly to find bargains and do my bit. But because of recent publicity about charity mailings I took a hard line. I rang them up and asked to be taken off their mailing list. The operator was polite and efficient. She asked for the code next to my address beginning 52A so she could add me to their suppression list but when I quoted it she said I wasn’t actually on their mailing list. Strange – I am looking at a letter addressed to me at my address asking for money from BHF.

She was quick to explain however that it was a one off mailing using data supplied by a 3rd party so they didn’t actually process my name and address. They just used it. I trotted out the well worn definition of processing that all BCS certificate holders know and she did admit that it looked as if they were processing after all. I asked who was the 3rd party and it turned out to be Senior Rail Card.

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(as an aside these are managed by ATOC Ltd which manages the contract for the issue and use of the Senior Railcard on behalf of the Train Companies. Reference to a ‘Train Company’ or the ‘Train Companies’ means those Train Companies which, pursuant to a franchise agreement, operate Passenger Railway Services in Great Britain. Their website has a cookie policy but no privacy policy. Nowhere on their website do they assure you that they will only use your personal data to supply you with a senior railcard. Nowhere do they inform you that they will pass it on to anyone else.)

To be honest it wasn’t Senior Rail card who gave my details to BHF it was Media Lab group; BHF told me at the same time they told me about Senior Rail card.

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Media Lab has a website where it says

“The media landscape may have changed, but the need for data hasn’t. That’s why at Medialab, we live and breathe data. It’s at the centre of everything we do. Our data-driven approach allows us to develop successful multi-channel media plans that are built on econometric analysis, innovation and a passion for our clients’ results. As a leading integrated direct response agency, we plan campaigns for the UK’s leading brands including National Trust, Post Office and Macmillan.”

Bizarrely for a data driven company they don’t have a privacy policy either. They were the company that gave my data to BHF. They got it from ATOC. I’m not sure how the transfer of data was made or whether money changed hands. We just don’t know. But I thought when I bought my senior rail card that my personal data would only be used or me to get cheap rail fares not donate to Heart charities or end up in the hands of List brokers.

The efficient BHF operator said she couldn’t delete me from their mailing list as I wasn’t actually on it. The list really belonged to Media Lab Group. They only used it to mail me. (Did someone at the back say Data Processor agreement and breach of Principle 7?).

However she had a solution to my predicament. She would add me to their database and immediately add me to their suppression list. Brilliant.

Next Alzheimers. Not as we first thought the Alzheimers Society (See comments) but another organisation working in this sector.

They also asked for money (or any donation will do) and they did have a privacy policy and also an undertaking issued by the ICO. They also gave me my Supporter reference number which was why they were contacting me. Because a year ago I filled in an online quiz to see if I was presenting any of the symptoms of dementia. At no time before, during or after the quiz did they give me any indication they would tap me up for money nor I asked if I wanted to become a supporter of theirs.

I rang them up to ask them to remove me from their mailing list but not a lot happened. When I say not a lot there was a recorded message saying “we apologise for the delay” then there was silence for the next 10 minutes at which point I gave up. They could have whistled a tune or even played a song but nothing. It was as if they  had forgotten to answer or they were hoping (like Doc Martin) that I had no patience.

They were right so I used the system they provided to communicate with them.  This time they supplied an SAE and a form where I could inform them of my preferences so I did. They’d used a jocular style to contact me without my consent so I replied in the same vein.

PS

Only 20 more charity letters to deal with… How I hate coming home from holidays.

The Act Now Data Protection Practitioner Certificate is a qualification designed to give candidates a head start in understanding and implementing the proposed EU Data Protection Regulation.

Scottish Information Commissioner’s Annual Report

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2014/15 saw the 10th anniversary of FOI in Scotland. In September the Scottish Information Commissioner, Rosemary Agnew, published her annual report for 2014/15.  Ms Agnew enforces the Freedom of Information (Scotland) Act 2002 (FOISA).

Highlights of the report include:

  • Public awareness of FOI is at its highest ever level, at 84%
  • 474 FOIA appeals were received across the year, 59% of which were from members of the public
  • The Commissioner found wholly or partially in favour of requesters in 64% of her decisions
  • The proportion of appeals received under the Environmental Information (Scotland) Regulations 2004 rose to its highest ever level
  • Public bodies reported receiving 66,804 information requests in 2014/15
  • 94% of the public think that FOI is important in holding public bodies to account

In an excellent example of Open Data, the Commissioner has also published detailed information on the appeals received since 2005, broken down by public authority, region and sector, in Excel spreadsheets on her website.

Last year additional bodies were made subject to FOISA.

Act Now has a full programme of FOISA workshops in Scotland.

If you are new to FOI in Scotland or want to boost your career through gaining a qualification, our FOISA Practitioner Certificate is ideal. The four day course is endorsed by the Centre for FOI , based at Dundee University.

The next course in Edinburgh, starting next week, is fully booked but we have places in Aberdeen.

If you’re considering enrolling on the course, what can you expect? Read a successful candidate’s observations and have a go at the FOISA test.

Is the Freedom of Information Act ‘working effectively’?

Image by Kevan via Creative Commons

By Steven McGinty

In July, Parliamentary Secretary for the Cabinet Office, Lord Bridges, announced that there would be an independent cross-party review on Freedom of Information (FOI).

The UK’s FOI Act was introduced in 2000 (in Scotland, FOI legislation came into force in 2005). The Act requires public bodies to publish certain information about their activities and to respond to requests for information from the public.

Since its introduction, the FOI Act has facilitated the release of information from across government. The most high profile releases have involved MPs’ expenses and correspondence between British diplomats ridiculing the notion of a widespread increase in migration from Poland to the UK, once they joined the EU.

Lord Bridges explained that the review would focus on three main issues:

  • whether there is an appropriate balance between having a transparent and accountable government and the need for sensitive information to be protected;
  • whether the Act adequately recognises the need to have a ‘safe space’ for policy development and implementation;
  • whether there is an appropriate balance between the need for public access to information and the burden on public bodies of providing this.

However, is this review really necessary?

Over recent years, a number of public figures have voiced their concerns over the Act. Even the man who introduced it, former Prime Minister Tony Blair, has stated that he was a “naive foolish, irresponsible nincompoop” to introduce it. He also suggested that it undermined “sensible government”.

Similarly, the former head of the Civil Service, Lord O’Donnell has argued that the requirement to release Cabinet minutes risked preventing “real discussions” between ministers.

There has also been discontent from local government, struggling to shoulder the financial cost of the Act. For instance, Ken Thornber, leader of Hampshire County Council, stated that:

“We spent £365,000 in 2010 answering freedom of information requests. What else could I do with that money? More social workers, more school inspectors, more spent on road maintenance.”

Although clearly frustrated by the Act, he doesn’t suggest withdrawing it. Instead, he proposes the idea of a £25 charge. His hope is that this would deter individuals from making ‘frivolous requests’.

In the 2010, University College London’s (UCL) Constitution Unit estimated that the cost of FOI requests for local government was £31.6 million. It also highlighted that civil servants spent 1.2m hours responding to nearly 200,000 requests.

Safeguards already exist

However, the review also has its opponents. For example, Sir Tim Berners-Lee, founder of the World Wide Web, has attacked the government’s decision. In particular, he criticises the UK Government for using its position at the top of the World Wide Web Foundation’s Open Data Barometer (annual worldwide survey of open government) to justify the review.

Anne Jellema, Chief Executive of the World Wide Web Foundation, has also added her disapproval. She explains that the UK’s position at the top of the Open Data Barometer should not be an excuse to undo the progress that has been made. In addition, she claims that the government is behind European countries on other transparency and accountability issues, such as state surveillance and freedom of the press.

The Campaign for Freedom of Information has raised concerns over the review panel. It highlights that there are no panel members with a proven commitment to transparency. Currently, the five person committee consists of high profile political figures, such as former Conservative Home Secretary Michael Howard and former Labour Foreign Secretary Jack Straw.

The Act has been praised for holding public bodies to account. For instance, the Daily Telegraph discovered that local authorities spent £2m on hotel bills over just 3 years, including stays at the Four Seasons in New York.

There are also those who maintain that safeguards are already in place. For example, section 35 of the Act provides a qualified exemption, which limits the release of information to the public. This safeguard is explicitly aimed at protecting the policy-making process.

A key challenge for any state is to strike the appropriate balance between effective governance and public accountability. Yet, with so many differing views, universal agreement is unlikely.  Therefore, no matter the outcome of the review, it’s likely that this debate will continue.

Steven McGinty is Research Officer at the Knowledge Exchange. This blog post has been republished with his kind permission.

Read Ibrahim Hasan’s FOI predictions here

Our forthcoming FOI workshops will look at these and other developments.

CCTV and the Law

By Steve Morris[ File # csp0356261, License # 1228612 ] Licensed through http://www.canstockphoto.com in accordance with the End User License Agreement (http://www.canstockphoto.com/legal.php) (c) Can Stock Photo Inc. / fintastique

The updated version of the Information Commissioner’s CCTV Code of Practice address the rising phenomena of surveillance technologies and methods. No longer are surveillance cameras passive image collectors, providing a resource for immediate use or historical evidence.

CCTV, ANPR, Body Worn Cameras, Aerial Drones, together with the associated analytical tools and software, are all technologies being used within many public and private sector organisations.

These technologies are invaluable for efficient and effective public protection as well as revenue collection and enforcement activities. Just one such example might be lone workers performing a caring function and for their safety, wearing audio and video recording equipment when they leave the safety of their own home. These persons then enter the private dwelling of a vulnerable person in need of assistance. In some instances the video and audio will be running throughout the whole of the attendance – often with a live feed to a control room. The benefits for the safety of the carer are clear, and the immediate response and advice by control room personnel is undoubtedly beneficial for the person requiring assistance. But this equipment is capturing images and conversation of an individual, and perhaps family and friends, within that person’s private home. The images and conversation, being witnessed by others many miles away is likely to be very intimate and private.

Does this vulnerable person or those responsible for them realise this is actually taking place?

Do they consent to it as a part of the provision of the service?

Before a public authority undertakes such activity it must conduct a privacy impact assessment, and perhaps obtain consent for the collection and processing of such information. Without such consideration – and a record of such assessment, then it might easily be argued that the organisation has not shown “Respect for the private life” in accordance with Article 8 of the European Convention on Human Rights, and the activity might be deemed to be unlawful – and indeed might be in breach of the Data Protection Act 1998. The Care Quality Commission has issued guidance on use of cameras in care homes.

The Surveillance Camera Commissioner, Tony Porter, pursuing compliance with a Code of Practice issued in accordance with the Protection of Freedoms Act has identified several aspects non-compliance when it comes to CCTV cameras:

  • Inadequate or non-existent privacy impact assessments
  • Equipment deployed with no respect or consideration for privacy or consideration for the benefit balanced with intrusion (proportionality)
  • Equipment in use not fit for purpose
  • Excessive use of surveillance
  • Removal of surveillance such as CCTV to reduce costs with little regard for the void left in relation to public safety and security

In a speech to the CCTV User Group, Mr Porter said budget cuts had led councils to decide to spend less on public space CCTV, meaning there was less money for staff training, poorer understanding of legal issues and a reduced service. He said councils could face greater scrutiny of their use of CCTV, including potential inspections and enforcement. Organisations should carry out annual reviews of their CCTV capacity but many failed to do so. He cited a West Midlands local authority which, upon review, reduced the number of ineffective cameras and saved £250,000 in the process.

Mr Porter, who has been in his post since March 2014, has written to council chief executives to remind them of the law and code of practice.

My latest series of one day CCTV law workshops examine the ‘surveillance landscape’ and the regulatory regime of the Information Commissioner, the Office of the Surveillance Commissioner, and the Surveillance Camera Commissioner. Attendees will be able to identify which regime(s) and codes of practice apply to their surveillance activity, and how to manage efficient, effective and lawful surveillance systems.

Steve Morris is an ex police officer and one of our expert surveillance law trainers. His CCTV law workshops take place in Manchester and London in October.

Permission Impossible? Consent and the new EU Data Protection Regulation

By Scott Sammons canstockphoto10615929

I recently took part in an ‘Information Awareness’ week for a local council. This was an event for council staff involving various training sessions revolving around a certain theme. Last year the sessions were on the theme of game shows and this year the theme was films.

I was lucky enough to draw the session title ‘Per-mission Impossible’ which would be looking at the subject of consent and permissions in their various forms. I make a point of not naming organisations I work with but credit for the title of this blog must go to them.

We had some really interesting discussions around what people believe are the current pitfalls and benefits with consent and what people think of the new world of consent as proposed by the European Union (EU) in their Data Protection Regulation.

We started with the current world and looked at the guidance from the Information Commissioner’s Office (ICO). Their Guide to Data Protection states;

“Consent is not defined in the Data Protection Act. However, the European Data Protection Directive (to which the Act gives effect) defines an individual’s consent as: …any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.”

This is primarily aimed at Data Controllers who are looking to use consent as a justification for the processing of personal data especially, and more explicitly, where that data is sensitive in nature.

Bearing this in mind there is then a conversation to be had around what that actually means in the real world. You know, that world where you have a Data Subject on the phone or sat in front of you more interested in resolving their query or issue than understanding what is happening with their personal data. Personally I’ve always seen the matter of consents and permissions as a customer service issue. Yes, there are things that we must do as part of compliance and demonstrate as part of our compliance. However the method and delivery should very much be aligned with the customer service standards and processes of the organisation. As the phrase goes “tax doesn’t have to be taxing.” Well “permissions don’t have to be a mission”. (I know, it was the best I could come up with on short notice!).

If you treat the gaining and subsequent management of permissions as a “compliance task” then that mind-set will be to always see it as a nightmare and a hurdle to overcome. However if you approach it as you would any other aspect of customer service and apply good customer service principles, you will get much closer to a compliant permissions model. It also puts you in something of a good position for the future.

Another aspect of the discussion around permissions and consent management involves the question of how to effectively manage a consent or permission regardless of the channel in which it is being obtained.

Regardless of the channel in which you communicate with the Data Subject, the only effective method for tracking consents/permissions is an electronic database that either forms part of or interacts with your main customer database. But with that comes a series of concerns around ensuring that this system is kept relevant and up to date. For example, in a large organisation where a customer speaks to some random part of the organisation and expresses a preference how do you ensure that the preference is captured and updated accordingly throughout the organisation?

These are important discussions to be had now because, as I run through below, the requirement to effectively and clearly demonstrate that you are doing the above becomes more important when the proposed EU Data Protection Regulation comes into force.

Permissions of the Future: All roads lead to explicit…?

So in my last blog post I gave an update on the General Data Protection Regulation and said that I’d start to focus on individual parts. Well this is the first one (and apologies that it’s taken me a while).

In the Commission’s proposal for a new General Data Protection Regulation, it proposed that whenever a business relies on consent as a valid ground for processing personal data, that consent should be ‘explicitly’ given. This changes the current position where consent only needs to be ‘explicit’ where a business wants to rely on it as a basis for processing sensitive personal data. Put simply, for processing for marketing purposes for example (which is almost always on the basis of consent) everyone will be required to “opt in” rather than opt out under the current regime (for phone and post at least). [References: European Commission Regulation Text CH I ART 4: General Provisions – definitions (8), CH II ART 6: Principles – lawfulness of processing (a), CH II ART 7: Principles – Conditions for consent (1-4)]

When the draft text made it through the European Parliament, the Parliament gave its backing to the new definition of ‘consent’ suggested by the Commission. It too believed that consent needs to be “freely given specific, informed and explicit” and provided “either by a statement or by a clear affirmative action”. And, in contrast to today’s requirements, the burden of demonstrating that the legal standard of ‘consent’ has been achieved would lie with organisations. [References: European Parliament Regulation Text CH I ART 4: General Provisions – definitions (8), CH II ART 6: Principles – lawfulness of processing (a), CH II ART 7: Principles – Conditions for consent (2)]

In contrast, the Council said there was broad support for rules which would require organisations seeking to rely on consent to process personal data to ensure that the consent is “unambiguous”. This seems to back the broad legal standard for consent that exists under current EU data protection laws and not a radical change to explicit consent regardless of context. [References: European Council Regulation Text Comparison (so far) CH I ART 4: General Provisions – definitions, CH II ART 6: Principles – lawfulness of processing (a), CH II ART 7: Principles – Conditions for consent (1)]

This post does not explore the requirements around children’s data. However the principle of “informed and explicit” consent is replicated there. This will be the subject of a different post so watch this space.

Which of these texts is likely to survive, I hear you ask? Well like most things in the world of politics that is unclear. However, if you look at it from a numbers point of view then 2 of the 3 approving bodies favour explicit consent and a requirement to demonstrate when and where that consent was collected. If I was a betting man I’d say that some shift towards explicit consent is going to happen, but how far is anybody’s guess.

More importantly organisations should be looking at how they currently manage and capture consents. If this is something that they don’t do (for whatever reason) then it’s time to start looking at how this can be factored into processes and staff trained so it gets woven into customer service standards.

Scott Sammons an Information Risk and Security Officer in the medico-legal sector and blogs under the name @privacyminion. He is on the Exam Board for the Act Now Data Protection Practitioner Certificate.

Want to know more about the EU Data Protection Regulation? Attend our full day workshop: http://www.actnow.org.uk/courses/1540

Facebook, Social Networks and the Need for RIPA Authorisations

canstockphoto12584745By Ibrahim Hasan

Increasingly local authorities are turning to the online world, especially social media, when conducting investigations. There is some confusion as to whether the viewing of suspects’ Facebook accounts and other social networks requires an authorisation under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA). In his latest annual report the Chief Surveillance Commissioner states (paragraph 5.42):

“Perhaps more than ever, public authorities now make use of the wide availability of details about individuals, groups or locations that are provided on social networking sites and a myriad of other means of open communication between people using the Internet and their mobile communication devices. I repeat my view that just because this material is out in the open, does not render it fair game. The Surveillance Commissioners have provided guidance that certain activities will require authorisation under RIPA or RIP(S)A and this includes repetitive viewing of what are deemed to be “open source” sites for the purpose of intelligence gathering and data collation.”

Careful analysis of the legislation suggests that whilst such activity may be surveillance, within the meaning of RIPA (see S.48(2)), not all of it will require a RIPA authorisation. Of course RIPA geeks will know that RIPA is permissive legislation anyway and so the failure to obtain authorisation does not render surveillance automatically unlawful (see Section 80).

There are two types of surveillance, which may be involved when examining a suspect’s Facebook or other social network pages; namely Directed Surveillance and the deployment of a Covert Human Intelligence Source (CHIS). Section 26 of the Act states that surveillance has to be covert for it to be directed:

“surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place” (my emphasis)

If an investigator decides to browse a suspect’s public blog, website or “open” Facebook page (i.e. where access is not restricted to “friends”, subscribers or followers) how can that be said to be covert? It does not matter how often the site is accessed as long as the investigator is not taking steps to hide his/her activity from the suspect. The fact that the suspect is not told does about the “surveillance” does not make it covert. Note the words in the definition of covert; “unaware that it is or may be taking place.” If a suspect chooses to publish information online they can expect the whole world to read it including law enforcement and council investigators. If he/she wants or expects privacy it is open to them to use the available privacy settings on their blog or social network.

The Commissioner stated in last year’s annual report:

“5.31 In cash-strapped public authorities, it might be tempting to conduct on line investigations from a desktop, as this saves time and money, and often provides far more detail about someone’s personal lifestyle, employment, associates, etc. But just because one can, does not mean one should. The same considerations of privacy, and especially collateral intrusion against innocent parties, must be applied regardless of the technological advances.” (my emphasis)

I agree with the last part of this statement. The gathering and use of online personal information by public authorities will still engage Human Rights particularly the right to privacy under Article 8 of the European Convention on Human Rights. To ensure such rights are respected the Data Protection Act 1998 must be complied with. A case in point is the monitoring last year of Sara Ryan’s blog by Southern Health NHS Trust. Our data protection expert Tim Turner wrote recently about the data protection implications of this kind of monitoring.

Where online surveillance involves employees then the Information Commissioner’s Office’s (ICO) Employment Practices Code (part 3) will apply. This requires an impact assessment to be done before the surveillance is undertaken to consider, amongst other things, necessity, proportionality and collateral intrusion. Whilst the code is not law, it will be taken into account by the ICO and the courts when deciding whether the DPA has been complied with. In December 2014, Caerphilly County Borough Council signed an undertaking after an ICO investigation found that the Council’s surveillance of an employee , suspected of fraudulently claiming to be sick, had breached the DPA.

Facebook Friends – A Friend Indeed

Of course the situation will be different if an investigator needs to become a “friend’ of a person on Facebook in order to communicate with them and get access to their profile and activity pages. For example, local authority trading standards officers often use fake profiles when investigating the sale of counterfeit goods on social networks. In order to see what is on sale they have to have permission from the suspect. This, in my view, does engage RIPA as it involves the deployment of a CHIS defined in section 26(8):

“For the purposes of this Part a person is a covert human intelligence source if—

(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or

(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship”  (my emphasis)

Here we have a situation where a relationship (albeit not personal) is formed using a fake online profile to covertly obtain information for a covert purpose. In the case of a local authority, this CHIS will not only have to be internally authorised but also, since 1st November 2012, approved by a Magistrate.

This is a complex area and staff who do not work with RIPA on a daily basis can be forgiven for failing to see the RIPA implications of their investigations. From the Chief Surveillance Commissioner’s comments (below) in his annual report, it seems advisable for all public authorities to have in place a corporate policy and training programme on the use of social media in investigations:

“5.44 Many local authorities have not kept pace with these developments. My inspections have continued to find instances where social networking sites have been accessed, albeit with the right intentions for an investigative approach, without any corporate direction, oversight or regulation. This is a matter that every Senior Responsible Officer should ensure is addressed, lest activity is being undertaken that ought to be authorised, to ensure that the right to privacy and matters of collateral intrusion have been adequately considered and staff are not placed at risk by their actions and to ensure that ensuing prosecutions are based upon admissible evidence.”

We have a workshop on investigating E – Crime and Social Networking Sites, which considers all the RIPA implications of such activities. It can also be delivered in house.

In conclusion, my view is that RIPA does not apply to the mere viewing of “open” websites and social network profiles. However in all cases the privacy implications have to be considered carefully and compliance with the Data Protection Act is essential.

Ibrahim will be looking at this issue in depth in our forthcoming webinars.

Looking to update/refresh your colleagues’ RIPA Knowledge. Try our RIPA E Learning Course. Module 1 is free.

We also have a full program of RIPA Courses and our RIPA Policy and Procedures Toolkit contains standard policies as well as forms (with detailed notes to assist completion).

New RIPA E-Learning Course

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Regular refresher training for those conducting covert surveillance under Part 2 of the Regulation of Investigatory Powers Act (RIPA) is a common recommendation by the Office of Surveillance Commissioners (OSC) following inspections. Up to now, public authorities have had a choice of sending their staff on external courses or engaging our RIPA experts to deliver customised in house training at their premises. Both these options have cost implications. Some authorities can only afford to train a handful of staff thereby running the risk of non compliance by others who may not know what RIPA is and when it is engaged.

Enter the new Act Now RIPA E Learning Course. From the comfort of their own desk public authority staff can now receive relevant and up to date training on covert surveillance regulated by Part 2 of RIPA (Directed Surveillance, CHIS and Intrusive Surveillance) including the authorisation process. From as little as £49 plus vat, five interactive modules can be accessed which have a stimulating and creative approach that engages and challenges the learner. Real-life scenarios, knowledge checks, case studies and examples are included to add relevance and increase comprehension and retention. A short final course assessment leads to a certificate.

This course is not just for new staff or those with little knowledge of RIPA. It will also help experience staff to refresh and update their knowledge as it takes into account the latest RIPA codes and new authorisation procedures. Those who are really confident can do the final course assessment first, to test and identify any gaps in their knowledge. These can then be filled by doing each module. The unscored quizzes and interactions within each module and the final scored assessment are designed to challenge even RIPA geeks!

Sam Lincoln, a former OSC chief inspector, has designed the course assisted by Ibrahim Hasan. Sam says:

“I was delighted to be commissioned by Ibrahim and his team at Act Now to produce this eLearning course. When I was Chief Inspector at the OSC I was aware that many local authorities, constrained by budget reductions, were attempting to provide their own training in-house. Despite valiant efforts the result was often regurgitation of the codes of practice and ‘death by PowerPoint’ lectures. I wanted to produce something that was more interesting and included interaction, feedback and assessment.”

Upon reviewing the course our RIPA expert and trainer, Steve Morris, said:

“I have had an opportunity to review the finished product and have to say it is a great mix of knowledge, animation and assessment, using many different learning delivery methods to keep the learner engaged. Sam provides clear well-paced narration and his choice of words make the modules easy to follow and understand. I would say the modules are ideal for anyone involved with the management and application of RIPA, whatever their position.”

The Act Now RIPA E Learning Course is suitable for staff in all public authorities but particularly those in local authorities working in trading standards, environmental health, planning, licensing and enforcement.

Want to know more? Watch module 1 for FREE and join our live demonstration webinar.

Office of Surveillance Commissioners (OSC) Annual RIPA Report (2015) – Key Points

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The Chief Surveillance Commissioner, Sir Christopher Rose, published his final annual report on 25th June 2015. A lot of the report is typical of someone in his position who is leaving office, having a few parting moans. Then again, a £56,000 maintenance fee from the Home Office (paragraph 3.3) for a relatively simple website is well worth moaning about)!

The report covers the period from 1st April 2014 to 31st March 2015 and should be read by public authorities, especially councils, who conduct surveillance under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA) (Directed Surveillance, Intrusive Surveillance and the deployment of a Covert Human Intelligence Source (CHIS)). It details statistics relating to the use of these tactics and information about how the Office of Surveillance Commissioners (OSC) conducts its oversight role.

Non-law enforcement agencies (including councils) authorised Directed Surveillance on 2207 occasions in the reporting period. The Department for Work and Pensions completed 25% of these. This continues a downward trend over the last few years. Last year there were 4,412 of such authorisations. Much of this downward trend is due to the continued impact of the changes, which took effect on 1st November 2012; namely magistrates’ approval for council surveillance and a new six-month threshold test for Directed Surveillance.

A total of 373 authorisations were presented to a magistrate for approval under The Protection of Freedoms Act 2012 during the reporting period. Just 17 were rejected. The Commissioner continues to be sceptical about the need for the changes saying, “I remain to be convinced of the value of this additional approval procedure which, obviously, promotes delay.”

The Commissioner, just like in his previous report, has expressed concern about the level of RIPA knowledge amongst magistrates:

“I have good reason to believe that training provision for magistrates in relation to RIPA and The Protection of Freedoms Act 2012 has been minimal and several councils have ended up providing this themselves to enable the new procedure to work effectively: this is commendable but not, presumably, what Parliament contemplated.” (Para 5.27)

Social Networks

The Commissioner advises caution when conducting online investigations especially where this involves examining social networking sites. A RIPA authorisation may be required in some cases:

“5.42 Perhaps more than ever, public authorities now make use of the wide availability of details about individuals, groups or locations that are provided on social networking sites and a myriad of other means of open communication between people using the Internet and their mobile communication devices. I repeat my view that just because this material is out in the open, does not render it fair game. The Surveillance Commissioners have provided guidance that certain activities will require authorisation under RIPA or RIP(S)A and this includes repetitive viewing of what are deemed to be “open source” sites for the purpose of intelligence gathering and data collation.”

From the Commissioner’s comments at paragraph 5.44 it seems advisable that councils should have in place a corporate policy and training programme on the use of social media in investigations:

“Many local authorities have not kept pace with these developments. My inspections have continued to find instances where social networking sites have been accessed, albeit with the right intentions for an investigative approach, without any corporate direction, oversight or regulation. This is a matter that every Senior Responsible Officer should ensure is addressed, lest activity is being undertaken that ought to be authorised, to ensure that the right to privacy and matters of collateral intrusion have been adequately considered and staff are not placed at risk by their actions and to ensure that ensuing prosecutions are based upon admissible evidence.”

We have a workshop on investigating E – Crime and Social Networking Sites, which considers all the RIPA implications of such activities.

Common inspection findings

At paragraph 5.47 of the report, the Commissioner lists the main issues that he has commented upon in his inspection reports:

  • Unsubstantiated and brief, or, conversely, excessively detailed intelligence cases
  • Over-formulaic consideration of potential collateral intrusion and an explanation of how this will be managed
  • Limited proportionality arguments by both applicants and Authorising Officers – the four key considerations (identified by my Commissioners and adopted within the Home Office Codes of Practice), if addressed in turn, should provide a suitably reasoned argument
  • More surveillance tactics and equipment authorised at the outset than appear to have been utilised when reviews and cancellations are examined
  • A regurgitation of the original application content at reviews, including a “cut and paste” proportionality entry that fails to address why the activity is still justified, in place of a meaningful update to the Authorising Officer about what has taken place in the intervening period
  • At cancellation, a rarity of meaningful detail for the Authorising Officer about the activity conducted, any collateral intrusion that has occurred, the value of the surveillance and the resultant product; and whether there has been any tangible outcome
  • Similarly, paltry input by Authorising Officers at cancellation as to the outcome and how product must be managed, and any comment about the use or otherwise of all that had been originally argued for and authorised
  • In the case of higher level authorisations for property interference and intrusive surveillance, an over-reliance by Senior Authorising Officers on pre-­prepared entries that alter little from case to case, or at times, regardless of who is acting as the Authorising Officer
  • In those same cases, often poorly articulated personal considerations as to the matters of necessity, collateral intrusion and proportionality; no or few entries at reviews; and little meaningful comment at cancellation
  • On the CHIS documentation, less common, but still encountered, the failure to authorise a CHIS promptly as soon as they have met the criteria; and in many cases (more typically within the non-law enforcement agencies) a failure to recognise or be alive to the possibility that someone may have met those criteria
  • A huge variation in the standard of risk assessments, whereby some provide an excellent “pen picture” of the individual concerned and the associated risks, whilst others can be over-generic and are not timeously updated to enable the Authorising Officer to identify emergent risks
  • Discussions that take place between the Authorising Officer and those charged with the management of the CHIS under Section 29(5) of RIPA are not always captured in an auditable manner for later recall or evidence, though this is starting to improve following our advice
  • As resources become stretched within police forces, the deputy to the person charged with responsibilities for CHIS under Section 29(5)(b) often undertakes those functions: as with an Authorising Officer, this is a responsibility which cannot be shared or delegated

Finally the Commissioner says that during inspections his staff have found that there is “a continuing lack, in many public authorities, of on-going refresher training for officers who may have been trained many years ago, or who have not been eligible for specialised training by dint of career progression or role.”

Those who have an OSC inspection in the Autumn should read Sam Lincoln’s e book which he has written for us entitled “How To Impress An OSC Inspector.” Get in touch if you want a free copy.

Last year new codes of practice under Part 2 of RIPA were introduced.

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ONLINE RIPA TRAINING

Looking for an e-learning solution for your RIPA training needs? http://www.actnow.org.uk/content/185

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Now is the time to consider refresher training for RIPA investigators and authorisers. We have a full program of RIPA Courses and can also deliver these at your premises, tailored to the audience. If you want to avoid re inventing the wheel, our RIPA Policy and Procedures Toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance.

New RIPA Communications Data Code of Practice

In March 2015 a new Code of Practice for the Acquisition and Disclosure of Communications Data by public authorities, including councils, under Part I Chapter 2 of the Regulation of Investigatory Powers Act 2000(RIPA), came into force.  It contains several policy changes, which will require careful consideration.

The key change is the need to ensure the independence of the Designated Person (DP). This is the person within the public authority who has to be satisfied that acquiring the communications data is necessary and proportionate and who signs off the application. Paragraph 3.12 of the new code states that DPs must be independent from operations and investigations when granting authorisations, or giving notices related to those operations.

This policy change was brought about in response to the European Court of Justice (ECJ) Judgment which struck down the Data Retention Directive (2006/24/EC) as the Directive did not include sufficient safeguards as to why and by whom such data may be accessed. The Judgment noted that the Directive contained no safeguards in relation to access to the retained data, including in relation to the independence of the person authorising access to the retained data.

The new code requires public authorities to satisfy the Interception of Communications Commissioner’s Office (IOCCO) that they have sufficient measures in place to ensure the DP’s independence. IOCCO have set out certain guidelines. In a nutshell, a DP must not be directly responsible for the operation or investigation (i.e. they should not have a strategic or tactical influence on the investigation). He/she should be far enough removed from the applicant’s line management chain which will normally mean they are not within the same department or unit. Applicants should not be able to choose who the DP will be on a case by case basis (save for in urgent circumstances). Finally, there should be a defined group of DPs in an organisation i.e. a recognised list defined by role and/or position.

Public authorities will need to ensure that they have a formal procedure setting out the arrangements in place to ensure independence. This will be examined by IOCCO during their inspection. It will also explore how the DPs are selected to consider applications and will audit compliance with the code.

There are exceptions to the rule of independence of DPs set out in the IOCCO Circular of the 1st June 2015 advising public authorities of the changes. These exceptions mainly relate to urgent authorisations and where very small teams of investigators mean that independence would be difficult. These exceptions will not normally apply to local authorities.

In all circumstances where public authorities use DPs who are not independent from an operation or investigation (save for the exceptions) this must be notified to the IOCCO at the next inspection. The details of the public authorities and the reasons such measures are being undertaken may be published and included in the IOCCO report.

What Should You Do Now?

  1. Prepare for an IOCCO inspection. The Commissioner still inspects councils despite their infrequent use. Read here what a typical inspection involves.
  1. Review your current DP authorisations and procedures. You may need to nominate additional (independent) DPs
  1. Review training for DPs. Paragraph 3.8 of the code says:

“Individuals who undertake the role of a designated person must  have current working knowledge of human rights principles and  legislation, specifically those of necessity and proportionality, and how they apply to the acquisition of communications data under Chapter II and this code.”

Do all your DP’s have this knowledge to undertake their role?

Act Now is offering live and interactive webinars for DPs tailored to your organisation. The webinars last for one hour which include an online test. All participants receive a certificate of completion. Get in touch for a quote.

How To Impress An OSC Inspector – Free E Book

How to impress an OSC inspector

In recent weeks reports reviewing RIPA by the Independent Reviewer of Terrorism and the Royal United Services Institute have been published. Both reports emphasised the need for clearer law and stronger oversight.

Some may presume that their recommendations persuade the Government to replace the Regulation of Investigatory Powers Act (RIPA), its amendments and related legislation, with something entirely new. That presumption may prove accurate.

However, I believe that any replacement is unlikely to substantially adjust the basic tenet of RIPA which is founded on Human Rights legislation. In particular, it is likely to retain the basic principles of necessity and proportionality along with the requirement for public authorities to produce a verifiable and contemporaneous audit of decisions and actions.

Whether or not local authorities in United Kingdom will be enabled by similar discretionary power remains to be seen. But if the effect of the Protection of Freedoms Act is illustrative, taking away the protection of law does not necessarily prevent covert surveillance conducted intentionally or accidentally. It merely removes protection from liability … neither public authorities nor citizens are properly protected.

Unless, as is the case with an interception, forms of covert surveillance are made unlawful without a warrant or authorisation, it is likely that investigatory powers will remain discretionary. Discretion – even if later approved by a designated official external to the relevant investigating authority – attracts misuse by officials if not official misuse.

The demand for better oversight is a key recommendation in both reports and there is an increasing expectation that the public is better informed regarding the potential for or actual abuse of discretionary powers.

Suffice to say that the Office of Surveillance Commissioners, or a body with similar or enhanced responsibility, will remain. Inspection is likely to be a key method to assess compliance and performance.

Impressing an inspector – and thus providing a mechanism to protect reputation and improve trust – should remain a concern to all those who are enabled to conduct surveillance covertly.

In my new E Book “How To Impress An OSC Inspector”, I provide my personal insights regarding how a local authority might best approach an OSC inspection. The information in the book remains relevant regardless of future change to legislation. It is directed at local authorities but is relevant to other public authorities.

You can download the E Book here.

I would be interested in your views. Please feel free to comment (below) or directly by email.

Sam Lincoln was formerly Chief Surveillance Inspector with the Office of Surveillance Commissioners for seven years.

STOP PRESS… STOP PRESS… STOP PRESS… STOP PRESS…

ONLINE RIPA TRAINING

Looking for an e-learning solution for your RIPA training needs? http://www.actnow.org.uk/content/185

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Act Now has revised its RIPA Policy and Procedures Toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance. Now is the time to consider refresher training for RIPA investigators and authorisers. We have a full program of RIPA Courses and can also deliver these at your premises, tailored to the audience.