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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 43 part of public sector operating staff represents an incalculable fraction of actual camera operating hours. The most recent is the reported imprisonment, after trial on charges of voyeurism and misconduct in public office, of two CCTV workers from the control centre for Sefton Council in Merseyside. Images of a young woman undressing, bathing and using the toilet in her home, overlooked by a camera, had been displayed onto a plasma screen at the centre 94 . The charges of voyeurism did not succeed against all three defendants, emphasising the importance of enforceable standards of conduct in managing public sector surveillance. The control room itself was under camera surveillance, one of a number of measures available for monitoring control room operations. Another cause of professional concern, the risk of false identification associated with visual recording, exacerbated by image quality, was reflected in the personal experience of people taking part in the ICO study. Despite this, support remained strong. Resistance was found mainly among young people, although infrequently. Suggesting that this might be attributed to an imperfect grasp of the technical capacity and remit of surveillance systems, the report acknowledges that, “Surveillance therefore seems to be capable of abuse, in terms of unjustified harassment – especially to those from minority communities”. This perception appears to have led Asian and Caribbean young men to draw conclusions about the need for ‘watching the watchers’, prior consultation, and some privacy rules, although these measures received wider support, as did some form of licensing. The abuse of surveillance equipment for intrusive purposes or harassment will amount to unfair processing, and breach of the First Data Protection Principle. For individuals, this will incur disciplinary sanctions, and for system controllers, attract the enforcement provisions of the DPA. The general law may also apply, leading to criminal prosecutions as in Merseyside. Effective sanctions are needed to underpin the DPA, and should be kept under constant review. In 2006, the Information Commissioner called for the penalties on conviction for offences under the DPA to be increased, and to include imprisonment, in order to deter the illegal disclosure and sale of personal information exposed by the ICO in its report, ‘What Price Privacy’ 95 . Options for the future The UK has developed a regulatory system for visual public sector surveillance technologies which, in comparison with some other jurisdictions, particularly in Europe and New South Wales, provides relatively weak ‘constitutional’ guarantees, but has resulted in relatively high management standards in the public sector, and has maintained public support. There are clearly complex reasons for international variations, but the power exerted by public awareness appears to be a critical factor in ensuring that standards are effectively enforced 96 . In the UK, despite confidence in public place surveillance, people are not well-informed about its regulation, despite the Treasury commitment involved. A number of desired rules emerged from the ICO study, including the need for signage, good quality images, a requirement for corroborative 94 Peeping tom CCTV workers jailed, http://news.bbc.co.uk/1/hi/england/merseyside/4609746.stm (04.08.2006) 95 What Price Privacy ICO 2006 96 Declaration of the Article 29 Working Party on Enforcement, EU 12067/04/EN WP 101, where it is noted that under-resourced and patchy enforcement regimes in some member countries may be attributed to an apparently low level of knowledge of their rights among data subjects.
44 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain evidence before individuals were apprehended, secure data retention, and operator training and supervision. Individuals should be protected by the need for consent for disclosure of images, and be able to obtain redress readily. With the exception of the evidence proposal, these are factors within the remit of the data protection regime, and to different degrees reflected in the existing code of practice. The new draft code, still at consultation stage, does seem to be attempting to strengthen and address some of these outstanding issues. Other regulatory options, that appear to be attractive to the public, are beyond the powers of the Information Commissioner, and the informational aspect of privacy, and appear to engage more directly with Article 8, and surveillance attributes. They go beyond the protection of individual interests and raise complex questions about the accountability of the public sector in the use of visual surveillance, and its role in monitoring other uses of visual surveillance. These options include a system of licensing, a role for local authorities in granting permission for the siting of cameras in public places, and consultation and participation by local people in the decision whether to install cameras and where to place them. Privacy or surveillance impact assessments may also have a role to play 97 . Such options are incapable of implementation without further public discussion and the development of consensus. Public awareness is needed to raise the level of debate, and a forum in which those responsibilities that fall outside the remit of the Commissioner, but engage Article 8, can be explored and refined. Three key questions emerge as we think of the future of visual surveillance technologies within the existing UK regulatory framework. The first is practical, and asks whether operators are meeting the requirements of the DPA, and maintaining signage, disciplined control rooms, and good data management and retention practice. The second encompasses the answer to that question, and asks whether the DPA is a sufficiently robust framework to enable the ICO to fulfil its role: “primarily to ensure that the Data Protection Principles apply in detail to the operation of surveillance in public places, and are seen to be properly and wholeheartedly enforced” 98 . The ICO lacks resources to build and promote its existing intervention, investigation and enforcement capacity, and can be expected to acknowledge that without general powers of inspection it is not possible to be confident that operators are complying with the legislation and code of practice. At European Union level, the Committee established to monitor the implementation of the EU Data Protection Directive 99 (the Directive upon which the Data Protection Act 1998 is based) is exploring what is needed for practical compliance, and seeking to harmonise compliance, has recognised that the ICO, along with its counterparts in other European countries, is underresourced. But the ICO also needs sufficient powers. The Committee’s call upon Member States to ensure that supervisory authorities take a more proactive step towards enforcement should add weight to this debate. The further question addresses imminent developments in the form of technological advances in surveillance methods and data sharing, and asks whether the DPA framework can or should be the only tool with which we meet the challenge as a society. The answer here appears to be that there is 97 A Report on the Surveillance Society, Surveillance Studies Network, ICO, 2006 where the potential of privacy and surveillance impact assessments are discussed in detail. 98 ICO, 2004 99 http://ec.europa.eu/justice_home/fsj/privacy/docs/95-46-ce/dir1995-46_part1_en.pdf
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