Yesterday the Financial Times reported that, “nine schools in North Ayrshire will start taking payments for school lunches by scanning the faces of pupils, claiming that the new system speeds up queues and is more Covid-secure than the card payments and fingerprint scanners they used previously.”
For a few years now, schools have used biometrics including automated fingerprint identification systems for registration, library book borrowing and cashless catering. Big Brother Watch reported privacy concerns about this way back in 2014. Now a company, called CRB Cunninghams, has introduced facial recognition technology to allow schools to offer children the ability to collect and pay for lunches without the need for physical contact. In addition to the nine schools in Scotland, four English schools are reported to be introducing the technology. Silkie Carlo, the head of Big Brother Watch, said:
“It’s normalising biometric identity check for something that is mundane. You don’t need to resort to airport-style [technology] for children getting their lunch.”
The law on the use of such technology is clear. Back in 2012, the Protection of Freedoms Act (POFA) created an explicit legal framework for the use of all biometric technologies (including facial recognition) in schools for the first time. It states that schools (and colleges) must seek the written consent of at least one parent of a child (anyone under the age of 18) before that child’s biometric data can be processed. Even if a parent consents, the child can still object or refuse to participate in the processing of their biometric data. In such a case schools must provide a reasonable alternative means of accessing the service i.e. paying for school meals in the present case.
POFA only applies to schools and colleges in England and Wales. However, all organisation processing personal data must comply with the UK GDPR. Facial recognition data, being biometric, is classed as Special Category Data and there is a legal prohibition on anyone processing it unless one of the conditions in paragraph 2 of Article 9 are satisfied. Express consent of the Data Subjects (i.e. the children, subject to their capacity) seems to be the only way to justify such processing.
In 2019 the Swedish Data Protection Authority fined an education authority (SEK 200 000 ,approximately 20 000 Euros) after the latter instructed schools to use facial recognition to track pupil attendance. The schools had sought to base the processing on consent. However, the Swedish DPA considered that consent was not a valid legal basis given the imbalance between the Data Subject and the Data Controller. It ruled that there was a breach of Article 5, by processing students’ personal data in a manner that is more intrusive as regards personal integrity and encompasses more personal data than is necessary for the specified purpose (monitoring of attendance), Article 9 and Articles 35 and 36 by failing to fulfil the requirements for an impact assessment and failing to carry out prior consultation with the Swedish DPA.
The French regulator (CNIL) has also raised concerns about a facial recognition trial commissioned by the Provence-Alpes-Côte d’Azur Regional Council, and which took place in two schools to control access by pupils and visitors. The CNIL concluded that “free and informed consent of students had not been obtained and the controller had failed to demonstrate that its objectives could not have been achieved by other, less intrusive means.” CNIL also said that facial recognition devices are particularly intrusive and present major risks of harming the privacy and individual freedoms of the persons concerned. They are also likely to create a sense of enhanced surveillance. These risks are increased when facial recognition devices are applied to minors, who are subject to special protection in national and European laws.
Facial recognition has also caused controversy in other parts of the world recently. In India the government has been criticised for its decision to install it in some government-funded schools in Delhi. As more UK schools opt for this technology it will be interesting to see how many objections they receive not just from from parents but also from children. This and other recent privacy related stories highlight the importance of a Data Protection Officer’s role.
BONUS QUESTION: The title of this contains a nod to which classic novel? Answers in the comments section below.
All the recent GDPR developments will be discussed in detail on our forthcoming GDPR Updateworkshop. We have a few places left on our Advanced Certificate in GDPR Practicecourse starting in November.
The Daily Mail reports today that, “A female doctor is set to be paid more than £100,000 after a judge ruled that her neighbour’s Ring smart doorbell cameras breached her privacy in a landmark legal battle which could pave the way for thousands of lawsuits over the Amazon-owned device.”
Dr Mary Fairhurst, the Claimant, alleged that she was forced to move out of her home because the internet-connected cameras are so “intrusive”. She also said that the Defendant, Mr Woodard, had harassed her by becoming “aggressive” when she complained to him.
A judge at Oxford County Court, ruled yesterday that Jon Woodard’s use of his Ring cameras amounted to harassment, nuisance and a breach of data protection laws. The Daily Sage goes on to say:
“Yesterday’s ruling is thought to be the first of its kind in the UK and could set precedent for more than 100,000 owners of the Ring doorbell nationally.”
Before Ring doorbell owners rush out to dismantle their devices, let’s pause and reflect on this story. This was not about one person using a camera to watch their house or protect their motorbike. The Defendant had set up a network of cameras around his property which could also be used to watch his neighbour’s comings and goings.
Careful reading of the judgement leads one to conclude that the legal action brought by the Claimant was really about the use of domestic cameras in such a way as to make a neighbour feel harassed and distressed. She was primarily arguing for protection and relief under the Protection from Harassment Act 1997 and the civil tort of nuisance. Despite the Daily Mail’s sensational headline, the judgement does not put domestic CCTV camera or Ring doorbell owners at risk of paying out thousands of pounds in compensation (as long as they don’t use the cameras to harass their neighbours!). However, it does require owners to think about the legal implications of their systems. Let’s examine the data protection angle.
Firstly, the UK GDPR can apply to domestic CCTV and door camera systems. After all, the owners of such systems are processing personal data (images and even voice recordings) about visitors to their property as well as passers-by and others caught in the systems’ peripheral vision. However, on the face of it, a domestic system should be covered by Article 2(2)(a) of the UK GDPR which says the law does not apply to “processing of personal data by an individual in the course of purely personal or household activity.” Recital 18 explains further:
“This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities.”
The judge in this case concluded that the camera system, set up by the Defendant, had collected data outside the boundaries of his property and, in the case of one specific camera, “it had a very wide field of view and captured the Claimant’s personal data as she drove in and out of the car park.” This would take the system outside of the personal and household exemption quoted above, as confirmed by the Information Commissioner’s CCTV guidance:
“If you set up your system so it captures only images within the boundary of your private domestic property (including your garden), then the data protection laws will not apply to you.
But what if your system captures images of people outside the boundary of your private domestic property – for example, in neighbours’ homes or gardens, shared spaces, or on a public footpath or a street?
Then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18) will apply to you, and you will need to ensure your use of CCTV complies with these laws.”
Once a residential camera system comes under the provisions of the UK GDPR then of course the owner has to comply with all the Data Protection Principles including the obligation to be transparent (through privacy notices) and to ensure that the data processing is adequate, relevant and not excessive. Data Subjects also have rights in relation to their data including to see a copy of it and ask for it to be deleted (subject to some exemptions).
Judge Clarke said the Defendant had “sought to actively mislead the Claimant about how and whether the cameras operated and what they captured.” This suggests a breach of the First Principle (lawfulness and transparency). There were also concerns about the amount of data some of the cameras captured (Fourth Principle).
Let’s now turn to the level of compensation which could be awarded to the Claimant. Article 82 of the UK GDPR does contain a free standing right for a Data Subject to sue for compensation where they have suffered material or non-material damage, including distress, as a result of a breach of the legislation. However, the figure mentioned by the Daily Mail headline of £100,000 seems far-fetched even for a breach of harassment and nuisance laws let alone GDPR on its own. The court will have to consider evidence of the duration of the breach and the level of damage and distress cause to the Claimant.
This judgement does not mean that Ring door camera owners should rush out to dismantle them before passing dog walkers make compensation claims. It does though require owners to think carefully about the citing of cameras, the adequacy of notices and the impact of their system on their neighbour’s privacy.
The Daily Mail story follows yesterday’s BBC website feature about footballers attempting to use GDPR to control use of their performance data (see yesterday’s blog and Ibrahim Hasan’s BBC interview). Early Christmas gifts for data protection professionals to help them highlight the importance and topicality of what they do!
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Updateworkshop. We have a few places left on our Advanced Certificate in GDPR Practicecourse starting in November.
The police have an important rule to play in the current coronavirus lockdown. However their actions must at all times be proportionate, transparent and (above all) lawful. Only yesterday, British Transport Police admitted they had wrongly charged a woman who was fined £660 under coronavirus legislation. Marie Dinou was arrested at Newcastle Central Station on Saturday after she refused to tell police why she needed to travel. A police and Crown Prosecution Service review said she was charged under the wrong part of the Corona Virus Act. The court will be asked to set the conviction aside.
This is not the only recent incident of the police overstepping the mark. By now most of us will have seen the story about a couple walking their dog in the Peak District. The video was filmed by a drone operated by the Derbyshire Police Drone Unit, and broadcast to the nation on BBC news. According to Derbyshire Police’s Twitter feed (which broadcast the same 90 second footage) the police force wanted to reinforce the government message of ‘stay at home’ and to point out this was not getting through, by effectively ‘shaming’ the couple who were captured on camera.
The video has sparked huge controversy from various circles including civil liberties campaign group Big Brother Watch and a leading member of the judiciary. According to the BBC,Big Brother Watch has described the move as ‘sinister and counter-productive’. Ex Supreme Court Judge, Lord Sumption, has also been very critical.
In BBC Radio 4’s World at One, Lord Sumption made it clear that the police have no legal power to enforce Government Ministers ‘wishes’ and guidance about non-essential travel. Although the government has enacted the Coronavirus Act 2020, this does not give the police any powers to stop individuals from non-essential travel or walking in isolated places. Lord Sumption’s criticism is most tellingly summed up in the following quotation:
“This is what a police state is like, it is a state in which the government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes.”
At Act Now we are not able to comment on whether the police have the powers to do this but we respectfully accept Lord’s Sumption’s view that they did not. Our concern is whether the filming and broadcasting of these individuals was GDPR compliant.
Our conclusion is that it was not.
The use of drones poses a privacy risk. The Police Force took the decision to process this personal data for their own purposes (“to get the message across”). They are therefore Data Controllers and must comply with the General Data Protection Regulation (GDPR) in relation to this processing. Images of individuals constitute personal data where it is possible to identify them from those images (GDPR Article 4(1)). It is entirely possible that the individuals captured in that Derbyshire police video could be identified by their clothing, hair colour and the presence of their dog.
Drones can be used to film people in many locations, often without the knowledge of those being filmed. In these circumstances, the processing of personal data must be lawful (GDPR Article 5 (1)). It is questionable which Article 6 basis the police could rely on here. Arguably processing is necessary for a ‘task carried out in the public interest’. However one would have to ask why it was necessary to film and broadcast these individuals. The police could not rely on ‘legitimate interests’ because this does not apply to processing carried out by public authorities in performance of their task (GDPR Article 6 (1)(f)).
Even if the police could identify a lawful basis, the next question is whether this processing is fair. The ICO guidance states that Data Controllers should only process data in ways that people would reasonably expect and not use it in ways that have unjustified adverse effects on them. I would argue that it is highly unlikely that anybody walking their dog in an isolated part of the Peak District would have any reasonable expectation that they would be secretly filmed by a drone and that their images would be broadcast to the nation in an attempt to shame them. So it seems highly unlikely that this processing is fair.
GDPR also requires transparency when processing personal data. This means data subjects should be made aware that their personal data is being processed and why.
The ‘normal’ transparency requirements (usually the GDPR (Articles 12-14) are less onerous for the police when they are processing personal data for law enforcement purposes under Part 3 of the Data Protection Act 2018. However, the police admitted themselves that the filming was for the purposes of ‘getting a message out’ and this does not fit easily within the definition of law enforcement purposes under S.31 DPA 2018. At best the police could try and argue that the processing was for the purposes of preventing threats to public security, but it is really difficult to see how this would succeed when it was just a couple walking their dog on an isolated stretch of path.
The police did not comply with the Information Commissioner’s tips on responsible drone use, in particular the advice about thinking carefully about sharing images on social media. The ICO cautions that drone users should avoid sharing images that could have unfair or harmful consequences. There is also little evidence that the Police had due regard to at least the first three guiding principles laid down in the Surveillance Camera Code of Practice or whether they conducted a Data Protection Impact Assessment.
On balance, the Derbyshire Police’s decision to film individuals taking a walk in an isolated area, in order to get a message across about not travelling unnecessarily was at best misguided, and at worst unlawful. The coronavirus is changing almost all aspects of our daily lives, and social distancing and self-isolating are the new norms. However, when the police take action it is still vital that they comply with their legal obligations in relation to the processing of personal data.
More on this and other developments in our FREE GDPR update webinar. Looking for a GDPR qualification from the comfort of your home office? Our GDPR Practitioner Certificate is now available as an online option.
The first fine was issued recently under the General Data Protection Regulation (GDPR) by the Austrian data protection regulator. Whilst relatively modest at 4,800 Euros, it shows that regulators are ready and willing to exercise their GDPR enforcement powers.
Article 24 of GDPR emphasises the need for Data Controllers to demonstrate compliance through measures to “be reviewed and updated where necessary”. This includes the implementation of “appropriate data protection policies by the controller.” This can be daunting especially for those beginning their GDPR compliance journey.
Act Now has applied its information governance knowledge and experience to create a GDPR policy pack containing essential documentation templates to help you meet the requirements of GDPR as well as the Data Protection Act 2018. The pack includes, amongst other things, template privacy notices as well as procedures for data security and data breach reporting. Security is a very hot topic after the recent £500,000 fine levied on Equifax by the Information Commissioner under the Data Protection Act 1998.
We have also included template letters to deal with Data Subjects’ rights requests, including subject access. The detailed contents are set out below:
User guide
Policies
Data Protection Policy
Special Category Data Processing (DPA 2018)
CCTV
Information Security
Procedures
Data breach reporting
Data Protection Impact Assessment template
Data Subject rights request templates
Privacy Notices
Business clients and contacts
Customers
Employees and volunteers
Public authority services users
Website users
Members
Records and Tracking logs
Information Asset Register
Record of Processing Activity (Article 30)
Record of Special Category Data processing
Data Subject Rights request tracker
Information security incident log
Personal data breach log
Data protection advice log
The documents are designed to be as simple as possible while meeting the statutory requirements placed on Data Controllers. They are available as an instant download (in Word Format). Sequential files and names make locating each document very easy.
The policy pack gives a useful starting point for organisations of all sizes both in the public and private sector. For only £149 plus VAT (special introductory price) it will save you hours of drafting time. Click here to buy now or visit or our website to find out more.
This marks a major milestone in establishing a new oversight regime set out in the Investigatory Powers Act, which was given Royal Assent in 2016. The Act, amongst other things, provides new powers for the police to access communications data e.g. telephone records, internet usage information etc. More on the Act in further blog posts.
Not only does the new commissioner take over the inspection and oversight functions carried out by the previous commissioners, he takes on responsibility for the pre-approval of certain police activities authorised under the Police Act 1997.
The Investigatory Powers Commissioner’s Office will consist of around 70 staff. This will be made up of:
Around 15 Judicial Commissioners, current and recently retired High Court, Court of Appeal and Supreme Court Judges;
A Technical Advisory Panel, of scientific experts; and
Almost 50 official staff, including inspectors, lawyers and communications experts.
Over the next 12 months Judicial Commissioners will start to take on their prior approval functions relating to the Investigatory Powers Act 2016, including interception, equipment interference, bulk personal datasets, bulk acquisition of communications data, national security notices, technical capability notices and communications data retention notices. The Judicial Commissioners will be supported in this work by the Technology Advisory Panel.
What impact will this new commissioner have on local authority inspections under Part 2 of RIPA carried out previously by the Office of the Surveillance Commissioners (OSC)? I suspect not a lot. The same issues will be considered as previously. The final OSC annual report once again highlights the recurring issue of investigations using social networks e.g. Facebook.
If you have an inspection coming up read our guide here.
Now is the time to consider refresher training for RIPA investigators and authorisers. Please see our full program of RIPA Courses which have been revised to take account of all the latest developments. We can also deliver these courses at your premises, tailored to the audience. Finally, 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. Over 200 different organisations have bought this document (available on CD as well).
So what should operators and controllers of CCTV and video systems be doing now? The short answer is, ensure you are complying with the current law and don’t believe the doom merchants:
“The GDPR will require a wholesale reassessment of data protection for the UK’s millions of CCTV cameras, which so far have gained from relatively light touch regulation.”
The ICO CCTV Code
Overt CCTV camera systems are regulated by the DPA. The Information Commissioner’s Office (ICO) revised its CCTV Code of Practice in 2015 to:
reflect the developments in existing technologies that have taken place in the last six years,
discuss the emergence of new surveillance technologies and the issues they present (e.g. drones and body worn cameras etc.)
reflect further policy development in areas such as privacy impact assessments,
explain the impact that new case law has had on the area of surveillance systems
reflect the wider regulatory environment that exists when using surveillance systems.
The ICO has produced a CCTV self-assessment tool that will help you assess your compliance with its code.
Jonathan Bamford, then the Head of Strategic Liaison at the ICO, emphasised in his blog post at the time of the consultation in to the new CCTV code that the that the underlying principles remain the same. And the same can be said about GDPR’s impact on CCTV systems. All the familiar provisions found in the DPA are there in the GDPR including the need for transparency, security, respect for individuals’ rights etc.
Data Protection Impact Assessment
One area, which needs particular consideration, is whether a Data Protection Impact Assessment (DPIA) needs to be undertaken before setting up a new CCTV system. DPIAs (also known as Privacy Impact Assessments) are a tool which can help Data Controllers identify the most effective way to comply with their GDPR obligations and reduce the risks of harm to individuals through the misuse of their personal information. A well-managed DPIA will allow Data Controllers to identify and fix problems at an early stage, reducing the associated costs and damage to reputation that might otherwise occur.
A DPIA is required when the processing is “likely to result in a high risk to the rights and freedoms of natural persons” (Article 35(1) of GDPR). Such processing, according to Article 35(3)), includes “large scale, systematic monitoring of public areas (CCTV)”.
Even where your CCTV does fall into this category it may still be deemed to be “high risk.” The Article 29 Working Party’s data protection impact assessment guidelines set out the criteria for assessing whether processing is high risk. This includes systematic monitoring of individuals.
For its part the CCTV code emphasises the importance of conducting a privacy impact assessment before undertaking surveillance using CCTV, especially when fitted to drones e.g. broadcasters seeking to gather footage for production purposes, police forces conducting surveillance on suspects, or construction companies monitoring job progress.
For more on DPIAs including how it should be conducted and by whom, please read our DPIA blog post. Other points to consider in relation to CCTV systems include:
How secure is the recorded data in the light of the GDPR’s more stringent security obligations and breach notification provisions?
Have you revised your subject access procedures in view of the changes under GDPR?
If a CCTV system is being used for employee monitoring, then other aspects of GDPR will come into play as well as, in some cases, Part 2 of the Regulation of Investigatory Powers Act (RIPA). For more on this topic see our blog post and forthcoming webinar.
The PoFA Surveillance Camera Code
Just to complicate things a bit more, some organisations also have to comply the Surveillance Camera Code (PoFA code). Made in 2013, pursuant to the Protection of Freedoms Act 2012 (PoFA), this code governs the use of CCTV and ANPR systems by local authorities and policing authorities in England and Wales.
“Over the coming weeks and months we will look at what else will be useful or necessary to support those using surveillance cameras on their journey to compliance. At the same time I can reassure you that we are working hard with certification bodies to adjust our independent third party certification scheme to ensure that if you or your organisation acquire that standard it is very likely that you will measure up to the new requirements under GDPR. Many police forces, local authorities, large retailers and transport networks sit within that category and I aim to broaden that base – outward reassurance to the public concerning inward compliance!”
GDPR will have an impact on CCTV and other video recording systems. But there is not going to be a revolution. If time is spent on complying with the current law by making use of existing resources (as explained above), there will be no need for a big jump into GDPR land.
The report covers the period from 1st April 2015 to 31st March 2016 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)).
We have reviewed the report and below are summaries of comments and sections of particular relevance to public authorities other than law enforcement. (The section numbers from the report are quoted below so that reference to the complete text can be made.)
Reduced use by public authorities Section 2.3.
There is substantially reduced number of authorisations by public authorities, most notably local district and borough councils, who do not deploy their statutory powers, or do so very rarely indeed, and do not intend or expect to do so in future.
However, while they remain vested with these powers, the appropriate structures and training must continue to be in place so that if they come to be exercised, the exercise will be lawful.
This reduction could be related to the substantial budgetary cuts faced by councils and the requirement for Magistrates’ Approval (and other reforms), which took effect on 1st November 2012.
Changed arrangements for inspection of local authorities Section 2.10.
The OSC is to introduce a new system of inspection for some local authorities where the statutory powers have not been used at all, or have been very rarely used in the last three years since a previous inspection, the process will start on paper, with a request for information. An Inspector or Assistant Surveillance Commissioner will visit the authority if there has been any significant increase in the use of the statutory powers, or if the responses to the OSC paper give ground for concern, or if the authority itself requests a personal visit by an Inspector. There will be no automatic visit.
Irregularities Section 4.18.
The total number of reports of irregularities (100) continues to represent a tiny proportion of the total number of authorisations granted during the course of a year. The overwhelming majority are the result of human error.
Section 4.19.
Irregularities caused by human error reinforces the need for those with responsibilities for ensuring compliance with the statutory provisions to receive regular, updated training, together with the need for continuing robust oversight by senior officers and managers of the processes. In the case of enforcement agencies, including the police, both these requirements are understood. In relation to some of the public authorities which, facing strains on their financial resources either have ceased or virtually ceased to use the statutory powers, and do not envisage using them in the future, training arrangements can sometimes assume a lowly priority. The view of the OSC is that every single authority vested with the relevant statutory powers should have in place structures and training arrangements which will ensure that the exercise of any such powers, even if arising unexpectedly, will be lawful.
Use of covert powers by public authorities other than law enforcement agencies Section 5.10.
From the OSC point of view the principle is clear. The fact that a local authority has elected not to exercise the relevant statutory powers does not remove it from the inspection process. While it retains these powers, which may be exercised at any time, appropriate structures and officials with the requisite training are required.
The “virtual world” Section 2.8.
There is a shift towards criminal activity in or by the use of the “virtual world”. This increases the demands on those responsible for covert surveillance. They need an understanding of the technological advances and myriad types of communication and storage devices which are constantly being updated. They also need assistance about how the statutory powers available to them can or should be applied
Social Networks and the “virtual world” Section 5.17.
Patterns of criminal planning are changing to embrace technological advances. Criminals and terrorists are less likely to meet in public, in parked up cars, with police officers using binoculars and longsighted cameras to follow their movements. Social media and private electronic communications provide greater anonymity for the criminals, and enable their activities to proceed on a global scale. This issue was addressed by my predecessor in his last two reports, and the Surveillance Commissioners have issued guidance on the need for appropriate authorisations to cover these developments.
Extract from OSC Procedures & Guidance document
Covert surveillance of Social Networking Sites (SNS)
The fact that digital investigation is routine or easy to conduct does not reduce the need for authorisation. Care must be taken to understand how the SNS being used works. Authorising Officers must not be tempted to assume that one service provider is the same as another or that the services provided by a single provider are the same.
288.1 Whilst it is the responsibility of an individual to set privacy settings to protect unsolicited access to private information, and even though data may be deemed published and no longer under the control of the author, it is unwise to regard it as ―open source, or publicly available; the author has a reasonable expectation of privacy if access controls are applied. In some cases data may be deemed private communication still in transmission (instant messages for example). Where privacy settings are available but not applied the data may be considered open source and an authorisation is not usually required. Repeat viewing of ―open source sites may constitute directed surveillance on a case by case basis and this should be borne in mind.
288.2 Providing there is no warrant authorising interception in accordance with section 48(4) of the 2000 Act, if it is necessary and proportionate for a public authority to breach covertly access controls, the minimum requirement is an authorisation for directed surveillance. An authorisation for the use and conduct of a CHIS is necessary if a relationship is established or maintained by a member of a public authority or by a person acting on its behalf (i.e. the activity is more than mere reading of the site‘s content).
288.3 It is not unlawful for a member of a public authority to set up a false identity but it is inadvisable for a member of a public authority to do so for a covert purpose without an authorisation for directed surveillance when private information is likely to be obtained. The SRO should be satisfied that there is a process in place to ensure compliance with the legislation. Using photographs of other persons without their permission to support the false identity infringes other laws.
288.4 A member of a public authority should not adopt the identity of a person known, or likely to be known, to the subject of interest or users of the site without authorisation, and without the consent of the person whose identity is used, and without considering the protection of that person. The consent must be explicit (i.e. the person from whom consent is sought must agree (preferably in writing) what is and is not to be done).
Section 5.18.
Inspectors and the Assistant Surveillance Commissioners pay particular attention to the way this developing method of criminal activity is kept under covert surveillance. The topic forms the basis for numerous requests for guidance. Perhaps the most significant feature is that investigating authorities cannot proceed on the basis that because social networking developed after much of the legislation came into force it is immunised from compliance with it. Requirements for appropriate authorisation may arise from the work done by those whose roles do not traditionally fall within RIPA or RIP(S)A. The necessary training and information must be addressed by the Senior Responsible Officer in each authority.
Some of the more common areas of criticism revealed in the inspection reports. They must be seen in context. In relation to law enforcement agencies, the standard of applications to and decisions of Authorising Officers for directed surveillance, property interference and intrusive surveillance are generally sound. Much of this is due to increased focus on the statutory requirements, clear internal leadership and investment in training.
The greatest complexity arises in the context of CHIS… In the context of social media in particular, it is sometimes difficult to recognise when a CHIS relationship has been established.
Some intelligence cases are too brief, others too long; most are of appropriate length; similarly with reviews, when a pertinent summary of what has happened since the latest update is required with, so far as possible, a simple explanation why the covert activity remains necessary and proportionate;
Occasional formulaic considerations given to the potential for collateral intrusion; for the OSC it remains a crucial feature that any authorisation for covert surveillance should be confined to those against whom there are grounds for suspicion, not their families or friends;
Authorisations for surveillance tactics and equipment use which, when reviews and cancellations are examined, appear to have been too widely drawn at the outset;
The conduct parameters for a CHIS are sometimes unclear and occasionally in such cases, the full extent of risks to the CHIS are insufficiently addressed, or, where the records are required by statute, left incomplete;
At cancellation, occasionally more detail is required from the Authorising Officer about the activity conducted, the value of the surveillance, the resulting product, and its management, and whether there has been any tangible or beneficial outcome, together with greater attention to any collateral intrusion;
In relation to public authorities the need for training for those vested with surveillance responsibilities is sometimes overlooked, particularly when budgets have been seriously depleted; in the case of adjacent local authorities training costs could perhaps be shared.
This is a summary of the detailed annual report – clearly the OSC places a high value on training (mentioned 19 times!), and indicates difficulties that arise as a result of not providing the training for all personnel involved or likely to be involved in authorised activity.
One emerging trend not addressed in the report is the rise in covert surveillance undertaken without the protection of RIPA when a local authority deems it necessary and proportionate to conduct covert surveillance in relation to preventing or detecting crime which does not meet the six month criteria, or a public authority deems it necessary and proportionate to conduct covert surveillance as part of it’s legitimate pursuit of responsibilities in relation to public safety, public health, regulation, and enforcement, in compliance with Article 8 Human Rights (commonly known as ‘non RIPA Surveillance’). See our blog post here for more on this issue.
Act Now’s programme of RIPA Courses address all of the issues raised in the report, and those associated with non RIPA surveillance, research and gathering of intelligence as well as evidence from social media. If your training budget is an issue, our online RIPA training is worth trying out. Module 1 is free.
Act Now also has a RIPA policy and procedures manual which is very useful for those revising their RIPA documents. It contains useful guidance for staff on when RIPA applies and how to complete the authorisation forms.
Raise awareness of RIPA in your organisation with our RIPA poster.
The government’s controversial Draft Investigatory Powers Bill was published in early November. Amongst other things, the Bill:
Requires web and phone companies to store records of websites visited by every citizen for 12 months for access by police, security services and some public bodies.
Makes explicit in law for the first time the Security Services’ powers for the bulk collection of large volumes of personal communications data.
Makes explicit in law for the first time the powers of the Security Services and police to hack into and bug computers and phones. It also places new legal obligation on companies to assist in these operations to bypass encryption.
Requires internet and phone companies to maintain “permanent capabilities” to intercept and collect the personal data passing over their networks. They will also be under a wider power to assist the security services and the police in the interests of national security.
A Committee has been formed to consider the key issues raised by the Bill, including whether the powers sought are necessary, whether they are legal and whether they are workable and clearly defined. The Committee is now inviting written evidence to be received by 21st December 2015 (call for evidence).
Some of the questions the Committee are inviting evidence on include:
To what extent is it necessary for the security and intelligence services and law enforcement to have access to investigatory powers such as those contained in the draft Bill?
Are there sufficient operational justifications for undertaking targeted and bulk interception, and are the proposed authorisation processes for such interception activities appropriate and workable?
Should the security and intelligence services have access to powers that allow them to undertake targeted and bulk equipment interference? Should law enforcement also have access to such powers?
The Committee is due to report back by February 2016.
What will the effect be of the Investigatory Powers Bill on local authorities? Is it true that councils will be given powers to view citizens’ internet history (according to the Telegraph)? The answer is no.
Sam Lincoln has written an in-depth analysis of the bill, detailing and dissecting its various points. Please take a look here.
Sam has designed our RIPA E-Learning Package which is an interactive online learning tool, ideal for those who need a RIPA refresher before an OSC inspection. Our 2016 RIPA workshops will include an update on the Bill.
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.
“I keep six honest serving men, they taught me all I know, their names are what, why, when, how, where and who…”
“I know a person small, she keeps ten million serving-men who get no rest at all! – One million how’s, two million where’s, and seven million whys!”
Rudyard Kipling 1902
Well it’s 2015 and we have an estimated 6 million (give or take a million or so!) surveillance cameras within the UK regulated sector, and that does not include those installed by private individuals. Cameras are no longer stuck on the end of poles recording peoples’ movements. They are worn by officials, installed on public transport and can even predict peoples’ behaviour.
Image technology has advanced tremendously in recent years. Data captured by CCTV systems is often automatically interacting with other databases with the capability of providing very intrusive information about the private lives and activities of innocent individuals as well as offenders and those that pose a risk to society.
We are also going through economically difficult times. CCTV and other surveillance technology can be seen a cost effective answer to the resource problem. However, without careful planning and regular review, it can be a costly option that might in fact provide little or no benefit and/or land an organisation in trouble with the various regulators in this sector. The Information Commissioner’s Office (ICO) has taken enforcement action involving both number plate recognition systems and cameras recording customers’ conversations in taxis.
The ICO is not the only regulator in this area. The Surveillance Camera Commissioner is tasked with raising awareness of the Surveillance Camera Code. Made pursuant to the Protection of Freedoms Act 2012 it governs the use of surveillance camera systems including CCTV and Automatic Number Plate Recognition (ANPR) operated by the police and councils in England and Wales.
The overall question revolves around whether a ‘scatter gun approach’ (obtaining lots of private data from lots of cameras) is actually a practical, cost effective use of resources. Furthermore is this approach a lawful, necessary and proportionate approach to addressing a ‘pressing social need’ or problem? Or would a smaller number of cameras providing images and data of the quality required, when it is required, be a better use of resources?
Compliance with the various codes and laws which govern CCTV, is easy if key questions are addressed at the outset:
What is the pressing social need or lawful grounds for the CCTV surveillance activity? What type(s) of devices and system is appropriate? What personal data is going to be collected? What policies and processes should we have?
Why do we need this surveillance in this place? Why is surveillance the option we have chosen?
When should the system be capturing and recording information? When is it right to share this information?
How will the system be managed? How much private information are we obtaining about individuals? How will we ensure it is kept secure?
Where will the cameras be positioned? Where will we store the data?
Who will we be watching? Who will have access to the collected information?
Looking for an opportunity to discuss these questions and many others, and to examine the regulatory requirements in relation to the decision making process? Attend one of my CCTV workshops and be brought right up to date with the latest laws, codes of practice and guidance.
Steve Morris is an ex police officer and one of our experts in surveillance law trainers.
