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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 111 Use of these techniques makes continued demarcation between targeted and mass surveillance techniques increasingly difficult. Up until now targeted techniques involved the use of RIPA powers (or intrusive surveillance permitted under previous legislation) based on human intelligence. For example, communications data access would be permitted against specified individuals when there were intelligence grounds justifying this. Increasingly, lower-end RIPA powers such as access to communications data might be permitted as a consequence of data matching throwing up an anomaly. This will effectively remove the use of human intelligence involvement until the time when the RIPA authorisation is sought. This is a significant shift. 2) The growth in mass informational data collation and dissemination is increasingly involving transfer across sectors. The two mass informational databases considered in this work, the National Identity Register and the Children Index, both contain provision for access by non public sector agencies. Section 12 IDCA allows for the provision of information from the register to be provided for identification purposes with consent and will provide the means for banks and so on to ascertain the identity of customers. The data sharing regime initially planned for the Children Index in Every Child Matters specifically mentioned the ‘voluntary sector’ as being included of the information hub of agencies allowed access to the register 216 . This inter-sector information transfer is partly a response to societal changes. Traditional distinctions between sectors in recent years have broken down as private-public partnerships have allowed private sector care homes, prisons, health service providers and so on to take on public functions. Meanwhile a growing number of private sector bodies are recognising the commercial potential of data. Collating publicly available information gathered from the electoral register and so on for sale to other private sector bodies can prove highly profitable. Similarly the creation of the Office of the Voluntary Sector has overseen closer links between public and third sector bodies with voluntary organisations increasingly providing services more usually associated with the public sector. Increasing contact between differing sectors does not of itself have negative privacy implications. However, it will affect the ability of the ICO to ensure DPA compliance. Separate sectors have differing approaches and attitudes to information. In very general terms, the public sector will view data as being of use for public service provision, benefit entitlement and crime detection. The private sector will tend to look on data as a commodity with either its own inherent value or of use in targeting potential customers. The voluntary sector characteristically views data as a means of identifying supporters or members or of providing benefits or services to its constituent audience. 3) Primary legislation with privacy implications tends to reserve the detail to regulations made later. This trend is not specific to privacy but is characteristic of a general move towards reservation of policy to secondary legislation. However, the implications of this are particularly pronounced in relation to privacy. Details of the bodies given RIPA powers are, for example, contained in orders. Details about the scope of information retention and sharing in the IDCA and by way of the Children Index will be mainly determined though statutory instrument. As has been commented on several times in this work, secondary legislation is a blunt instrument for nuanced proportionality determinations. It is difficult for the legislature to make an accurate determination of whether a particular piece of data can be retained or whether a body should have access to it when regulations cannot be amended. 216 See footnote 116 above.
112 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 4) The legislative framework regulating privacy is unsuited to current requirements. In relation to the DPA this is due to development of the common law (in particular relating to CCTV as a consequence of Durant) and as a consequence of increased capability in automated data processing. In human rights terms this is mainly due to the HRA 1998 being ideally suited to provide redress to the individual victim. Inroads into privacy will often have an impact upon society as a whole. However the HRA is not best equipped to provide such a wide analysis. This limitation to HRA litigation is of particular relevance to the rollout of the National DNA database which tends to pit the benefit of solving a specific serious crime against a less quantifiable cost to wider public privacy. Intrusive Surveillance 1) RIPA falls short of providing a proper accountability mechanism. The most significant shortcoming is the failure of RIPA to provide any independent judicial scrutiny of applications for intrusive surveillance. Nearly seven years after coming into force, RIPA continues to be criticised for its complexity and the difficulties of interpretation. 2) The regulatory framework for RIPA does not allow comprehensive scrutiny of intrusive surveillance. The Office of Surveillance Commissioners has expressed concerns that the lack of training and awareness among RIPA empowered agencies could lead to unlawful interference with privacy. Reports by the Interception of Communications Commissioner have expressed concern over the numbers of mistakes made during RIPA authorisation. His most recent report also demonstrated the sheer volume of authorisations (over 439,000 in the 15 months between January 2005 and March 2006) making consideration of individual authorisation difficult. This is compounded by the fact that these two surveillance watchdogs mainly operate in a reviewing capacity, commenting on what has happened previously. The Regulation of Investigatory Powers Tribunal also seems unsuited to fulfil a meaningful role in determining complaints. Its inability to consider investigations not authorised by warrant has contributed to a failure to make a single determination of contravention of the HRA or RIPA. 3) The certified warranting process allows the mass examination of external communications (those sent or received outside the UK). RIPA also permits the Secretary of State to authorise certified warranting practices to occur within the UK. It is unclear the extent to which mass surveillance of internal communications takes place. 4) A consequence of increasing reliance on data matching and data mining techniques might result in a knock-on effect increasing the quantity of authorisations of low-level RIPA powers like accessing communications data. 5) The Government has not given any indication that it intends to change the authorisation regime for interception of communications. As a consequence, ministerial oversight is likely to remain in place for the time being. However, there is growing interest in judicial authorisation as evidenced by the recommendation of the Joint Committee on Human Rights in its report on counter terrorism policy that it should be adopted 217 . 217 See Page 36 above.
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Overlooked - Liberty

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