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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 57 The reality of policing makes stopping people to establish their identity a regular occurrence. Section 24 of The Police and Criminal Evidence Act 1984 allows for arrest without warrant for a number of reasons including enabling the name of the person in question to be ascertained. This means that ID cards are likely effectively to become the means by which identity is established. This will particularly be the case with the use of broad powers of stop and search without suspicion, available throughout London on rolling authorisation since 2002 under Section 44 of the Terrorism Act 2000. Coupled to this is a concern that identity cards will be used as a means of internal immigration control. In September 2004, The Guardian newspaper ran a story saying that police and immigration officials had carried out random swoops on public transport 123 . The then immigration minister, Des Browne, said that officials could legitimately question people to determine their immigration status where there is a reasonable suspicion that a person is an immigration offender. Given that Clause 1 (5) of the Bill allows ‘current residential’ status as a registrable fact, it is a significant concern that once the scheme has moved to compulsion, members of minority ethnic communities will be required to produce their identity card on a regular basis by police and immigration officials. Once compulsion has been fully rolled out and the scheme settled in, there is also the possibility that not carrying a card, although perfectly legitimate, might be viewed as something that is in itself suspicious. Access to the Register The privacy implications of any database are dependent on who can have access to it. There is a huge difference between information retention and information dissemination. People are not generally concerned by the holding of extremely sensitive personal data about ourselves if we are relatively confident that that information will not be shared. Medical records contain information that is certainly more ‘private’ than the information that will be held on the NIR. However, people do not generally take issue with this as they do not expect that our medical information will be accessible by a range of public and private bodies 124 . The Act creates a wide ranging regime allowing access to the register without consent 125 to named public bodies and agencies. It also allows information to be provided to private sector bodies with a person’s consent 126 in order to assist with verification. This will enable information to be passed to private bodies such as banks in order to verify identity. Powers to pass information without consent are largely restricted to public bodies (although information can be passed to anyone for the purposes of crime detection and prevention). The Act sets out a list of bodies that can be given access to the register. This contains all those bodies that might be expected: the Security Services, GCHQ, various policing bodies, the Commissioners of Customs and Excise. The police and customs bodies do have some restriction on their ability to access the register in that it must be for a purpose linked to national security, crime and so on. The 123 http://www.guardian.co.uk/immigration/story/0,,1422817,00.html 124 NHS Connecting for Health, responsible for the planned centralisation of patient records, has been at pains to emphasise the restrictions to access intended to ensure that no-one can access records without good reason. 125 Sections 17-21 126 Section 12
58 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain security services and some specialist police agencies such as the Serious Organised Crime Agency (SOCA) have effectively unfettered access. They are also able to access the ‘audit trail’ of the register. The ‘audit trail’ creates some particularly interesting privacy implications for the scheme. Paragraph 9 of Schedule 1 to the IDCA goes far beyond the basic name, address, nationality and so on to be recorded in the register. It allows for a record to be made of every occasion where information in the register is provided to anyone, details of the person to whom the information has been given and ‘other particulars’ relating to each occasion this is done. As the register is rolled out, a growing number of both public and private sector bodies will provide an interface to the NIR. This means that a detailed record of everyone’s movements, what services they have accessed at what time, and so on, will be collated. This will create an imprint of our existence going way beyond that currently created. Some agencies will have unlimited access to it without consent and without the need to justify access. While the framework set up by the Bill is broad, it has considerable scope for extension. All powers of access are subject to extension by order of the Secretary of State. It does seem inevitable that many agencies that might be considered suitable to gain access to the register will eventually be granted access. This is not some unfounded ‘Big Brother’ prediction. It has logic and a precedent. The logic derives from the fact that once a system is in place it is sensible to seek as many uses for it as possible. If there is any justification for a particular public or private body to be given access then it is unlikely to be rejected. No government would like to run the risk of allegations that a crime or terrorist attack could have been prevented if only access to the register had been given to a particular body. That would be political disaster. Far preferable would be the prospect of a few allegations of insufficient attention being paid to privacy. The precedent comes from RIPA. As discussed earlier, RIPA sets out the powers and abilities of public bodies to undertake differing levels of targeted surveillance such as intercepting communications, using undercover operatives and obtaining communications traffic. The scheme as set up in the legislation is structurally similar to the IDCA. The legislation creates the scope of powers and allows regulations to list those that can use them. Once RIPA was in operation, the Home Office published regulations in 2003 that would have allowed an unprecedented range of ‘public bodies’ access to communications data such as records of emails and telephone or mobile phone conversations. The regulations, dubbed in the press ‘the Snooper’s Charter’, allowed all local authorities as well as such diverse bodies as the Food Standards Agency and New Forest District Council powers to access data. Once The Guardian newspaper had run the story there was a surprisingly high level of public concern resulting in the Government promising to look again at its plans. This was notable for two reasons. First, the backlash against the plans demonstrated that people could be highly engaged by the prospect of intrusion from sources other than police and security services. It appeared that people were much less trusting of their local authority than of MI5. Second, this was, and remains, one of the few instances where secondary legislation by way of regulation has not been passed as a matter of course. In fact, the most surprising thing about the Snooper’s Charter was that any attention was paid to it at all. When the revised and reduced list of public bodies was published it passed though parliament almost unnoticed. It is likely that any set of regulations passed under the IDCA will also eventually be passed with little attention being paid to their content.
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