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252 The LSE Identity Project <strong>Report</strong>: June 2005- s.28 – required for the purpose of safeguarding national security- s.29 – likely to prejudice the prevention or detection of crime, the apprehensionor prosecution of offenders, or the assessment or collection of any tax or duty orof any imposition of a similar nature.Exemption for national securityThe validity of an exemption claimed under s.28 is adjudicated by the InformationTribunal (National Security Appeals), and was tested in a 2001 case involving NormanBaker MP. 675 The Security Service claimed that under the Neither-Confirm-Nor-Deny(NCND) doctrine, a blanket ban on any disclosure of their records was justified. TheTribunal rejected the validity of the certificate imposing a blanket ban, because it heldthat there were conceivable circumstances under which disclosure might not breach theNCND doctrine.Whether the exemption is claimed under a blanket or a case-by-case Ministerialcertificate, under DPA 1998 it is certain that information disclosed to individuals abouttheir audit trail will be redacted of any and all events pertaining to access by theintelligence and security Agencies. A fortiori, in relation to national security purposes,the right of subject access is irrelevant to providing redress against abuses harming theindividual.Exemption for prevention and detection of crimeIf the trail contained records of access to the Register for reasons which would engagethe exemption allowed by DPA s.29, then the audit trail disclosed to the individualcould be redacted of access events pertaining to such reasons. Thus the disclosed trailwould not indicate Register access by serious crime agencies, or other users empoweredunder clause 22, to the extent that exempted “prejudice” would likely be caused.Therefore, in relation to the exempted purposes of DPA s.29, the right of subject accessis irrelevant to providing redress against abuses harming the individual.Differentiating between two types of audit trail eventsAs shown by the analysis above, the right of Data Protection subject access to the audittrail would not reveal information about access to the Register by security, intelligenceand in many cases law enforcement agencies (assuming that the audit trail will containinformation about access by any of these agencies – which as noted previously is notexplicitly required by the Bill as drafted).The rationale for the existence of the audit trail is ostensibly to provide the individualwith a means to seek redress in cases of abuse (so far as permitted by subject accessexemptions), and the Commissioners and Tribunals with evidence to detect, investigateand substantiate instance of abuse and complaints, in the interests of the individual. Thetrail might also serve a secondary function as a means of surveillance, to ascertain thewhereabouts and activities of an individual, perhaps over an entire lifetime.675 Norman Baker MP v. Secretary of State for the Home Department, Decision by the Information Tribunal,http://www.dca.gov.uk/foi/bakerfin.pdf.
The LSE Identity Project <strong>Report</strong>: June 2005 253From the point of view of protection of the individual, the audit trail of Register accessevents, of which they are not aware or for which their consent is not required, should bemaintained for a sufficient period to allow redress of abuse, but there is no suchcompelling reason in the interest of the individual to retain a trail of consented/awareaccess events indefinitely.The design implications of fixing this problem are relatively simple. There is notechnological reason why an individual should not exercise their right of subject accessto their audit trail by periodically “downloading” a copy to a personal computer from anonline portal to the Register provided for this purpose. The evidential integrity of thisaudit trail data could be guaranteed by certifying it with a digital signature affixed bythe Register, (in accordance with the Electronic Communications Act 2000). There isthen no necessity to require the Register to maintain an original copy of the data, and itcould be deleted if the individual wishes. Of course the Register would create a newaudit trail from that time going forward, until again downloaded and deleted. Anysubsequent claim and investigation of abuse could rely on audit data in the individual'scustody (and if necessary cross-checked with decentralised secondary records held bypublic or private organisations empowered to make use of the Register).It may be argued that it would be useful for the Register to keep a copy of the trail incase the behaviour/whereabouts/activities of the individual subsequently needed to beinvestigated for some official purpose. But such retention would need to be justifiableunder the provisions of the Data Protection Act and ECHR Article 8 tests of necessityand proportionality.It may also be argued that the idea of downloading and then erasing trails of theconsented/aware events will only be of interest to an technophile elite, but the designand operation principles established through primary legislation should be durable, andit is only in the past decade that most people have had access to personal computers andthe Internet.There is therefore overall a strong case for differentiating between audit trail eventspertaining to Register access and identity verification of which the user is aware or towhich they have consented, and other types of event. It is not in the interests of theindividual for a comprehensive trail to be retained indefinitely - the cumulative threat toprivacy will at some point outweigh the risk of ancient abuse claims incapable ofpursuit. Furthermore the Investigatory Powers Tribunal imposes a one year time-limiton their acceptance of complaints, which would apply equally in relation to complaintsabout the conduct of Agencies in relation to the ID scheme.The residue of trails left after deletion of consented/aware events (at the individual’sdiscretion) would logically be those occasions when the Register was checked withoutthe knowledge or permission of the individual. The former category constitutes adossier of life events and behaviour about the individual and is therefore highly privacyinvasive,but the latter are predominantly information about the behaviour oforganisations using and accessing the Register. There is thus a compelling rationale todistinguish and clearly separate requirements and policies for the recording of these twotypes of events in any audit trail.
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