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Overlooked: Surveillance and personal privacy in modern Britain 21 Whilst using such methods to target individuals is not new, it is the emphasis on this as a key component of the “war on terror” which has spawned an array of new domestic surveillance legislation across the world since 9/11. A leading example is the US PATRIOT Act – the acronymic short name for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act – enacted in October 2001. It has far-reaching provisions covering interceptions and access to personal information (including library, medical, education, internet, television and financial records) without the need for individual suspicion. Another example is China, where the response has been to develop the Golden Shield project described as an “allencompassing surveillance network – a gigantic online database – incorporating speech and face recognition, closed-circuit television, smart cards, credit records and internet surveillance” 29 . At the same time as changes in domestic arrangements, there has been an emphasis on the need to provide global intelligence cooperation. At the European Union level this has been consolidated in the Hague Programme, adopted by Member States in November 2004. It, for example, incorporates the new concept of the “the principle of availability” which, as the organisation Statewatch 30 says, seeks to ensure that nothing stands in the way of direct and automated access to data held by the policing authorities across the EU. Since the attacks of September 11 2001, the legislative focus on surveillance powers in the UK has not been to strengthen intrusive surveillance. This is mainly due the passing of the Regulation of Investigatory Powers Act 2000 (RIPA) the year before the atrocity. Instead, most of the ‘antiterrorism’ measures have increased the state’s ability to create or access mass informational databases or to create powers for use against individuals such as the internment of foreign nationals under the Anti-terrorism Crime and Security Act 2001 and the Control Order regime set up under the Prevention of Terrorism Act 2005. Article 8 of the European Convention on Human Rights Precisely because the surveillance is targeted, the core questions of when and how it is used become even more critical. In general terms, Liberty believes that the use of such powers is an accepted and justified right of a state so long as they are compliant with human rights. As with general surveillance, it is therefore the protection of privacy as guaranteed under Article 8 that provides the governing framework for the regulation of such methods. It means that there must be a clear basis in law with detailed regulations so as to cover especially those areas where the technology available is continually becoming more sophisticated. It has to be shown, in each case where the surveillance is employed, that a legitimate purpose is being served – usually in the interests of national security or for the prevention and detection of crime. The interference to the individual or individuals must be proportionate to the risk faced. This requires that particularly intrusive methods should only be used in the investigation of particularly serious offences, and when less intrusive methods are not available or are unlikely to succeed. Furthermore, the exercise of such powers must be subject to a system of checks and balances including independent oversight and access to an effective remedy for those whose rights are breached. 29 China’s Golden Shield : Corporations and the Development of Surveillance Technology in the People’s Republic of China , Greg Walton, Rights & Democracy, 2001. 30 http://www.statewatch.org/
22 Overlooked: Surveillance and personal privacy in modern Britain Regulation of Investigatory Powers Act 2000 Prior to the introduction of the Regulation of Investigatory Powers Act 2000 (commonly referred to as RIPA) there was a patchwork of laws permitting intrusive targeted surveillance that had been developed in an ad hoc manner over many years. This led to a widespread view, including within government, that there were gaps in statutory and procedural controls that rendered many of the surveillance activities unlawful in terms of Article 8 in particular. This was emphasised when the then Home Secretary, Jack Straw MP, introduced the RIPA Bill in March 2000 as “…A significant step forward for the protection of human rights in this country…We are trying actively to ensure that our system protects individuals’ Convention rights, while recognising how vital such investigatory powers are to the protection of society as a whole. Striking the right balance in this area is an important responsibility of Government and of the Home Office in particular” 31 . RIPA regulates invasive surveillance activities through a framework of warrants and authorisations. It is intended to provide a HRA-compliant framework for targeted surveillance by requiring that authorisation can only be given when the activity takes place for a purpose set by the statute and when it is a proportionate means of doing so. This reflects the requirement for a ‘legitimate purpose’ and the need to be ‘necessary in a democratic society’ as required in Article 8 (2) HRA 32 needed to justify any inroad into the right to privacy. The method of authorisation differs according to the type of surveillance. These will be considered in detail below but a brief overview is appropriate here. The most invasive form of surveillance, the interception of communications, requires the issuing of an interception warrant authorised by the Secretary of State, who must be satisfied that the issue is justified on proportionality grounds (which include the need to consider alternative means of achieving the objective). The interception of communications must also be for a legitimate purpose more restrictive than the full set of acceptable grounds set out in Article 8 (2). It can only take place in the interests of national security, for preventing or detecting serious crime, or to protect the economic wellbeing of the country. Authorisation of access to communications data 33 is similar to the interception of communications in terms of necessity and proportionality. However there is no need for the authorisation to come from the Secretary of State. It is, instead, an internal process in which a senior figure within the body accessing the data will provide authorisation. There are also wider grounds of justification of the need for interception; again, these include national security, detection and prevention of crime and economic wellbeing. However, they also include the interests of public safety, the protection of public health, the assessment or collection of tax, duty, levy or other governmental charge, the prevention, in an emergency, of death, injury or damage to a person’s health, or for other purposes specified by Parliamentary order by the Secretary of State 34 . It is worth noting that this list goes beyond the legitimate purposes contained in Article 8 (2) HRA, which does not make provision for 31 Hansard HC Debs. vol.345 col.767 March 2000 32 Article 8 (2) HRA provides that ‘There shall be no interference by a 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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ 33 Communications Data is the record (but not the content) of communications such as details of phone calls, emails and visits to websites. 34 Section 22 (2) RIPA
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Overlooked - Liberty

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