The Home Secretary has this week announced that proposals to create a State run super database, which would track everyone’s use of email, internet and text messages, have been scrapped. The announcement is hardly surprising. It was always going to be difficult to persuade the public that such a database could be kept secure, particularly in light of recent high profile controversies about large scale losses of electronic personal data by government agencies. Moreover, allowing the State to develop such a vast single repository of electronic communications data was always going to raise questions as to whether the resulting interference with private rights was proportionate and was otherwise consistent with the State’s obligations under the Data Protection Act 1998. The Government has now issued a consultation paper on new plans to allow telecommunications companies to retain the communications data for a period of 12 months. See further the Home Secretary’s Ministerial Statement.
Author: Anya Proops KC
Rethinking RIPA
On 17 April 2009, the Home Office launched a consultation on plans to stop investigatory powers being used under the Regulation of Investigatory Powers Act (RIPA) for trivial purposes. It seeks views on questions including: which public authorities should be able to authorise key investigatory techniques, for example, the use of communications data or covert surveillance in public places under RIPA; the purposes for which these investigatory techniques should be used; the option of raising the rank of the local authority employee authorising the use of investigatory techniques to senior executive; and whether elected councillors should play a role in the authorisation. The consultation follows on from a spate of public outcrys about the use of surveillance powers by public authorities, including not least the use of covert cameras by local authorities to watch how residents use their rubbish bins and the use of covert surveillance techniques to track a family which the local authority suspected may be living outside the local school catchment area. The issue of how the investigatory powers available under RIPA should be used is particularly current in view of the recent controversy over techniques used by the police to photograph protesters, many of whom it is argued are merely peaceful demonstrators.
Bad Phorm?
The European Commission has announced that it is mounting a legal challenge in respect of the use of targeted online advertising in the UK. The challenge follows complaints which were made to the Commission in response to BT’s act of testing the technology on BT broadband users without their consent. The technology, which is the brainchild of a company called Phorm, enables internet service providers (ISPs) to profile what sites internet users visit so as to enable advertising companies more astutely to target their adverts on individual users. The Commission has taken the view that the UK has breached EU data protection laws by permitting the deployment of the technology in the absence of user consent. The Information Commissioner’s Office has previously stated that the use of the technology would be permissible if operated on the basis that users have opted in to the system. The Commission’s challenge raises real questions as to the legality of Google’s recently launched behavioural targeting system. See further my post on this system below.
Google’s Streetview – ICO Responds
The launch of Google’s Streetview service in March 2009 sparked considerable debate within the British media. Privacy campaigners criticised the intrusive nature of the service, which enables internet users to access 360 degree views of people, homes, cars and streets in 25 of Britain’s cities. It would appear that the Information Commissioner has now had his say on the matter. According to an article published in yesterday’s Observer newspaper, the Information Commissioner rejected a complaint brought by Privacy International which challenged the legality of the service. Notably, the Observer reports that the Commissioner dismissed the suggestion put forward by Privacy International that consent should have been sought from individuals whose image was captured in the pictures shown by Streetview. He apparently compared the Streetview service with images of individuals broadcast during televised football matches, where similarly consent would not be sought. Of course, Streetview is not the only part of Google’s operations which have given rise to privacy concerns. Not least in recent weeks, concerns have been raised about another Google innovation, which enables advertisers to target adverts on individual Google users by relying on site-visit profiles developed by Google. The so-called behavioural targeting system enables Google to build up a profile of the internet sites visited by a particular user when using the Google search engine. The profile is then used as a basis for indicating what advertising the user may be interested in. Concerns expressed about the new system have included that individuals are not asked whether they wish to receive targeted advertising and, further, that the right to opt out of the system is not adequately advertised to users.
Guardian article on Streetview:
https://www.guardian.co.uk/technology/2009/apr/12/google-street-view-privacy
Channel 4 report on Behavioural Targetting System
https://www.channel4.com/news/articles/science_technology/how+google+adverts+got+personal/3076122
The Age of Internet Surveillance
With effect from today, all UK internet service providers (“ISP”) will be required to retain data relating to every email which is sent and every online telephone call which is made using their services. The data, which must be stored by ISPs for 12 months, will not include the content of the email or the call. It will however include the date, time, duration and routing of the online communication as well as information as to the internet subscriber or user. The obligation to retain this data is imposed under the Data Retention (EC Directive) Regulations 2009 (“the Regulations”). The regulations were enacted in order to bring into effect the provisions of the Data Retention EU Directive 2006/24/EC. The Directive was itself enacted in response to concerns that a lack of consistency of approach to data collection across Europe, particularly in the field of internet communications, was hampering the fight against crime, including international terrorism. The effect of the Regulations, which come into force today, is that the data retention principles which already apply to telecoms providers under the Data Retention (EC Directive) Regulations 2007 will now also apply to internet providers. As well as retaining the communications data, the internet service provider must afford access to particular data where they are required to do so by law (regulation 7). They must also abide by certain principles relating to the protection and security of the data (regulation 6).
Big Brother Takes to the Road
Many of us are aware that, when in use, our mobile phones can be used by telecoms companies and security agencies to trace our whereabouts. However, few of us are likely to have been contemplating a scenario where our cars would contain built-in tracking devices enabling state authorities to have, in effect, a system of near total road surveillance. However, a new EU backed project, known as the Cooperative Vehicle-Infrastructure Systems (CVIS) project, may go a long way towards achieving that result. In particular, it is understood that the project, which is due to be unveiled later on this year, envisages that, by 2013, such devices would commonly be built into newly manufactured cars and that a universal frequency will be made available so as to enable state authorities to monitor the location of all cars fitted with the device. As one might expect, privacy and civil liberties groups are said to be up in arms about this development. It is understood that the European Data Protection Supervisor will make a formal announcement on the privacy implications of CVIS technology soon.
Media article:
https://www.guardian.co.uk/uk/2009/mar/31/surveillance-transport-communication-box