Surveillance and the State

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Surveillance and the State

Introduction

The UK is increasingly sleep walking into a surveillance society[1] to the extent that it has become an inescapable part of life.[2] Every time we make a telephone call, send an email, browse the internet, or even walk down our local high street, our actions may be monitored and recorded.[3] The increasing prevalence of surveillance has perhaps led to the state being viewed by its citizens as the Big Brother of Orwellian fame. This essay intends to focus on the impact of government surveillance and data collection has upon the privacy of citizens and, as a consequence, their relationship with the state. To effectively answer this question there needs to be an examination of the various forms of surveillance and data collection and whether they are constitutionally proper or improper, intrusive or legal, and whether there should be limitations to the quantity of information collated.

The advancement of technology in the 21st century has enhanced the quantity and integrity of surveillance information which begs the question are we as a nation ‘too stupid’ to realise how intrusive the UK’s surveillance regime is? Is a citizen’s liberty and privacy at stake with the effects of surveillance from both public and private sector? Furthermore is the legislation governing this issue sufficient in its application? All these matters will be addressed. However, as there are so many forms of surveillance, there will be a particular emphasis on mass surveillance and the use of CCTV and databases. The need for a widespread belief in the importance of individual freedom and executive accountability is undoubtedly a prerequisite to the success of a constitutional democracy.

Understanding Surveillance and its Components.

The term ‘surveillance’ can be briefly defined as ‘watching over’ which indicates monitoring the behaviour of persons, objects, or systems.[4] There are two broad types of surveillance, mass surveillance and targeted surveillance. Mass Surveillance is not targeted on any particular individual and gathers information for future use, further, it has the potential to erode privacy. Whereas targeted is directed at particular individuals. It can be carried out under a covert or overt means If it is carried out under a covert operation, it is important to note, that the citizen is unaware of the use of targeted surveillance, so therefore the relationship with the state is unaffected by the use of this type.

However if in the event where there was unlawful targeted surveillance and the individual was to become aware, the consequences can be detrimental to the relationship between the citizen and the state. It is important to note that alongside the state there are non state agencies and organizations which also occupy an increasingly significant component of surveillance systems today. The case of Patton v Poole Borough council where, only after the surveillance had been completed by the council on a family, were they made aware of this. The council believed they were acting in accordance with RIPA, and that ‘it was necessary for the prevention and detection of crime and it was proportionate for determining the genuineness of information supplied by Ms Patton.’

[5] The tribunal in this instance found the council was in breach of RIPA and did not act in accordance with Article 8. In coming to this conclusion the court had to determine the issue of whether the actions carried out by the council was necessary for the prevention or detection of crime and was it proportionate to what sought to be achieved. The legislation governing Surveillance and the protection of citizens is outlined in the Data Protection Act 1998, Regulation of Investigatory Powers Act 2000, the Freedom of Information Act 2000 and the 1995 European Data Protection Directive 95/46/EC. The Data Protection Act governs the protection of personal data; however this act does not mention privacy of the individual.

Privacy

The need for privacy is fundamental in a high surveillance society such as the UK. Privacy Internationals survey in 2007 which covered 47 countries indicated there had been in an increase in surveillance in the past year to the detriment of privacy safeguards. 8 of these 47 countries were rated as being ‘endemic surveillance societies’ which included the UK.

[6] The need to protect and facilitate the development of privacy of the citizen in order to maintain healthy functioning of society is a necessity with the advancement of technology. Privacy is recognised as a fundamental right by various legal instruments,[7] although Article 8(2) of the European Convention on Human Rights provides limitations.[8] However in English law it is a known fact that there is no right to privacy, it has been suggested that privacy is of such importance to humanity that in the past it needed little formal protection.[9] The high profile case of Kaye v Robertson[10] illustrated the need for the right to privacy in the UK, where photographs of Gorden Kaye were published as he lay suffering from injuries in a car crash.

Governments

The government’s evidence does not itself explain how the collection of information helps in the pursuit of their objectives, or whether existing processing practices are proportionate to those objectives.[11] The need for this may result in a conflict between the interests of the citizen and the aims of the state. Concerns were also raised about whether government agencies and other public bodies understood how the principles of necessity and proportionality operate in the context of privacy and limitations set out in article 8(2). In order to justify a an interference with article 8’s stipulations, the state must be able to show that it is acting lawfully and for a legitimate aim and the interference is both necessary and proportionate [12] (Hugh Tomlinson p 440)

CCTV and how it relates to citizens

A Home Office Study concluded that ‘the CCTV schemes that have been assessed had little overall effect on crime levels.’[13] Critics further argue that mass intrusion into peoples movements may not be proportionate and a breach of their rights to privacy under the Human Rights Act.[14] On the roads, camera based restrictions of speed has increased from 300,000 in 1996 to over 2 million in 2004 where an estimated £113 million in fines have been generated per annum.[15] These statistics have not been welcomed by citizens and have received negative press on the issue. However the overall increase in CCTV on the roads has no doubt contributed to a reduction in deaths and injuries. The state acknowledges how CCTV is valuable in preventing and detecting crime and the overall safety of society.

Citizens can be reassured that they can go about their daily business with confidence, it gives members of the business community added security and sends a clear message to those engaged in crime or anti social behaviour that they will be caught and will be prosecuted.[16] Further councillor Hazel Harding acknowledges how CCTV is popular with law abiding members who see it as a preventative and feel much safer [17] agreeing with many members of society who believe, if ‘you have nothing to fear if you have nothing to hide.’ However the Association of Chief Police Officers (ACPO) recognised the contribution of CCTV images is not recorded in a systematic manner.[18] For example, the increased use of Automatic Number Plate Recognition, where cameras can read number plates and then check them against police databases to see if the cars are wanted for any reason, such as road tax, insurance and MOT. However this is not the only purpose of these cameras, every road user’s journeys are stored on a PSNI database for a minimum of two years regardless of the innocence of the subjects.

There are about 10 billion innocent people movements stored on the UK database to date. 15 million innocent people’s details are logged and stored everyday.[19] The use of sophisticated data mining software such as ‘Northgate BOF 2.3, Advanced Data Miner’ is used by all police forces in the UK, which allows every journey a person makes to be tracked, traced, mapped and spied upon for the previous two years. Furthermore this is done without individuals consent. Furthermore to date, there has been no parliamentary debate nor legislation passed regulating its use. The system has no safeguards or independent scrutiny in place. The view that ‘there is not and never can be justification for harvesting and storing data information from innocent law abiding citizens by a government without the explicit permission of the individual.’

On the other hand ANPR can be seen as an internationally recognised tool that can significantly reduce volume crime, provided the police use their ANPR system in a lawful, ethical and accountable manner; for the purpose of preventing and detecting terrorism, serious crime, volume crime and road traffic offences.[20] The question arises are the benefits of this outweighing the costs. Such technology enhances the notion that we are living in a surveillance society, others might argue that anything seen as aiding the police to catch murderers and combat crime is necessary.

The information Commissioners Office, which advices organisations on the use of CCTV, says cameras must be reasonable and proportionate to maintain public trust and must not breach the Data Protection Act.[21] The Data Protection Act 1998 states that it should be clear from the outset that the purpose of the CCTV recording is to be stipulated and any subsequent deviation from that purpose constitutes a breach of the legislation. This can be applied to any form of information collation where it should only be used for the purpose it was originally intended.

Databases

‘There is a need to gather and access personal information to: support the delivery of personalised and better public services; fight crime and protect security; reduce the burden on business and the citizen, and tackle social exclusion through early intervention.’[22] This quotation reflects on the acceptable intention of surveillance and is perceived as an indispensable tool in the day to day operation of social systems. Whereas once it was fairly safe to assume that personal records kept for purposes such as health, policing, social insurance, banking and driver licensing would be stored in relatively watertight containers, the computerization of these records means that they are readily amenable to different forms of integration. Given the immense value placed on personal data, both for commercial exploitation and for risk management, huge pressure is placed on these containers to yield their secrets in shareable ways..[23] Surveillance in this context means focused attention to personal details aimed at exerting an influence over or managing the objects of data or data subjects as they are sometimes called.

[24] It can be considered an aiding instrument to organise. Under the Data Protection Act, bodies that are collecting and collating data, be it health records, revenue information or even a school recording pupil information, are legally required to pay an annual fee of £35 to register with the Information Commissioner that they are collecting and storing such information. There is a two tier structure based on the organisation’s size and turnover, notification fee’s of £500 applies to data controllers with a turnover of over £25.9 million or employs over 250 members of staff.[25] What is of concern is who monitors how this information is being used and how secure it is, or to put it another way, who watches the watchers? These questions concern the accountability of data collection. It is only when there is a breach of security that there is awareness that not all bodies are compliant with the Commissioner’s requirements.

These breaches tend to become of real public concern when they come to the attention of the media, affecting public relations with the governing bodies to the level of mistrust. For instance in December 2007, it was revealed that a computer hard drive with the details of 3,000,000 UK learner drivers had gone missing in the USA and that the details of 7,500 vehicles and their owner had been lost by the Driver and Vehicle Agency in Northern Ireland. Also in DATE the junior officers of HMRC lost personal details of all families in the UK with a child under 16.

The corroborative of data collection this is in the combating of fraud. This can be considered as a law enforcement activity which uses data collection. Statistics have indicated that the use of this form of surveillance to combat fraud can be considered proportionate to combating its aims as success in respect of NHS savings of £189 million in 2005, the National fraud Initiative savings of £111 million in 2005-06, and £10 million saved in respect of cheque and plastic card fraud.[26] Where revenue databases are concerned it is not unreasonable to assume that every individual is treated as a suspect. Innocent people are investigated. Here the question arises again, is the invasion of an individual’s privacy necessary in order to prevent fraudulent claims?

Conclusion

In conclusion, the advances in technology in this field have permeated our society resulting in the citizen subconsciously accepting surveillance as part of every day life. Surveillance data can be very powerful and can enable consumers to perform a wide range of functions, which can be perceived as part of the issue – how wide should that use deviate from the initial intention before it can be deemed explorative and ultimately exploitive. Among these functions include assessing banking information, health records, constructing consumer profiles in the name of facilitating efficient services, the topical issue of mobile phone calls, and sending and receiving electronic mail.[27] It is important to realise that these same advantages can be considered a threat to certain aspects of society through misuse and mismanagement.

There are two sides to this argument of proportionality. And no conclusive all-embracing solution.

Perhaps we are due a sequel of George Orwell’s publication, possibly titled “2084”. One wonders what premonitions would he postulate if he were here today.

The introduction of CCTV was viewed as a tool to reduce the amount of crime. To date there is very little substantive research evidence to support this.[28] Perhaps if the state were to provide more community policing on the streets of the UK this may be more productive. Further, a review carried out by the Home Office that looked at street lighting found a significant reduction in the levels of crime to the order of 20%.[29]

The results from a YouGov Poll[30] have indicated that 79% of people believe that Britain is increasingly being described as a surveillance society. And a further 66% do not trust governments of whatever political party to keep information on databases confidential. Although 97% agree to CCTV in banks and building societies and a further 85% In my opinion the state wishes to control us absolutely, and to achieve this, it must know absolutely everything about us, every minute of our day.

Surveillance Web – the rise of visual surveillance in an English city Bibliography

Legislation

Textbooks

Goold B and Neyland D, New Directions in Surveillance and Privacy (2009 Willan Publishing.) Haggerty K and Samatas M, Surveillance and Democracy, (2010 Routledge.) Hier S and Green J, The Surveillance Studies Reader, (2007 Open University Press) Mattelart A, The Globalization of Surveillance, (2010 Polity Press.) Barendt, Privacy as a constitutional Right and Value, (1997 Oxford University Press)

Journals

Taylor N, ‘State Surveillance and the Right to Privacy’ Surveillance and Society 1(1):66-85. Lyon D, ‘Everyday Surveillance, Personal Data and social classifications’ Information Communication & Society, (2002) Routledge. vol 5 issue 2,

Websites

Privacy International Leading Surveillance Societies in the EU and the World Survey 2007 accessed 3December 2011.

Nidirect Government Services, How is CCTV used in the Community, accessed 05 December 2011.

http://www.bigbrotheriswatching.co.uk/

http://www.ico.gov.uk/for_organisations/data_protection/notification/cost.aspx Information Commissioners Office website.

Newspaper articles

R Ford, ‘Beware Rise of Big Brother State, warns data Watchdog’ The Times,16 August 2004. Sunday Times, A Camera network designed to catch criminals is being turned on innocent motorists reports David Leppard. 4/4/2010. Philip Johnson, Home Affairs Editor, Your Life in their Lens, 02 November 2006 The Telegraph. Q & A Birmingham Terrorist Cameras, 17 June 2010.

YouGov/ Daily Telegraph, 28th- 30th November 2006.

Miscellaneous
Surveillance: Citizens and the State Volume 1: Report House of Lords select committee on the Constitution 2nd Report of Session 2008-09.

M Gill and A Spriggs Assessing the Impact of CCTV, London Home Office Research, Development and Statistics Directorie, 43, 60-61.

Surveillance, Order and Social Control
End of Award Report to the Economic and Social Research Council in respect of grant L210252023
Clive Norris
Department of Social Policy, University of Hull

State Surveillance and the Right to Privacy
Nick Taylor1

Jane Clift
Respondent
– and –
Slough Borough Council

Your life in their lens the telegraph

———————–
[1] R Ford, ‘Beware Rise of Big Brother State, warns data Watchdog’ The Times,16 August 2004. [2] Surveillance: Citizens and the State Volume 1: Report House of Lords select committee on the Constitution 2nd Report of Session 2008-09 para 1. [3] Ibid.

[4] Ibid para 18
[5] Patton v Poole Borough Council (2010) IPT/09/01/C) para 8. [6] Privacy International Leading Surveillance Societies in the EU and the World Survey 2007 accessed 3December 2011. [7] See UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Council of Europe, European Convention for the Protection of Human Rights and fundamental freedoms, 4 November 1950, Directive 95/46/EC on the Protection of individuals with regard to the processing of personal data and the free movement of such data. Privacy regulations aimed at governing how personal information is processed were introduced in the 1970’s and 1980’s.

[8] European Convention on Human Rights, Article 8(2) There shall be no interference by public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country. [9] Barendt, Privacy as a constitutional Right and Value, (Oxford University Press 1997) p 7. [10] Kaye v Robertson [1991] FSR 62.

[11] Surveillance: Citizens and the State Report, (n2) at 69. [12] Surveillance: Citizens and the State Report, (n2) at 127. [13] M Gill and A Spriggs Assessing the Impact of CCTV, London Home Office Research, Development and Statistics Directorie, 43, 60-61. [14] Sunday Times, A Camera network designed to catch criminals is being turned on innocent motorists reports David Leppard. 4/4/2010. [15] Philip Johnson, Home Affairs Editor, Your Life in their Lens, 02 November 2006 The Telegraph. [16]Nidirect Government Services, How is CCTV used in the Community, accessed 05 December 2011. [17] Councillor Hazel Harding, Leader of Lancashire County Council and chair of the Local Government Association Safer Communities Board. [18] Surveillance: Citizens and the State (n2) at 74

[19] http://www.bigbrotheriswatching.co.uk/
[20] Police Service of Northern Ireland, Policy Directive PD 01/08 PSNI ANPR Systems, 17 December 2007. [21] http://www.bbc.co.uk/news/10341867 – Q & A Birmingham Terrorist Cameras, 17 June 2010. [22] Ibid at p 21.

[23] Surveillance studies Reader – Get in short loan lib
[24] D Lyon, ‘Everyday Surveillance, Personal Data and social classifications’ Information Communication & Society, vol 5 issue 2, (2002) Routledge. P 1. [25] http://www.ico.gov.uk/for_organisations/data_protection/notification/cost.aspx Information Commissioners Office website. [26] Surveillance state and citizens report.

[27] S Hier and J Green, The Surveillance Studies Reader, Open University Press, (2007) pg. 77. [28] R Armitage, ‘To CCTV or not to CCTV’ (2002) Nacro, Crime and Social Policy Section [29] Ibid.
[30] YouGov/ Daily Telegraph, 28th- 30th November 2006.

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