Hawktalk

Labour’s privacy legacy: 1 in 50 subject to communications surveillance

At the moment, we are all being bombarded with numbers associated with New Labour’s financial legacy. Well there is another number which reveals a further legacy of the last administration.

Under New Labour, for each UK citizen in the last year (i.e. you), there was a 1 in 50 chance that your communications could have been accessed by the law enforcement and national security authorities. This translates into a “Governmental Annual Surveillance Probability” (known as the “GASP”) of at least 0.02.

How do I get to that? From the Annual Report of the Interception of Communications Commissioner for 2009 (published last July), which I have just had the pleasure of reading.

Anyway, let’s get down to some revealing statistics from the Report.

The Report notes that there were 1,500 warrants signed by a relevant Cabinet Minister who authorised interception of communications, and that were 5,267 subsequent “modifications” to these warrants over the year. This means that each warrant is changed on average 3.5 times and that each warrant has four or five different forms: the original warrant (which the Cabinet Minister has to authorise) and three or four subsequent modified forms (that the Cabinet Minister is unlikely to see). The Scottish figures are more or less the same: 192 warrants in force and 629 changes (3.3 modifications per warrant).

The nature of these modifications are not mentioned in the Report. They could be trivial (e.g. adding a new phone number used by the target of the surveillance) - but who knows? One can only hope that the “modifications to warrants” are not substantial, for if they were to be substantial, then a “modification procedure” is being used as a substitute for the procedure that should apply when a new warrant is being obtained.

If this were to be the case, the matter becomes very serious as any protection afforded by Regulation of Investigatory Powers Act (RIPA) with respect to warrant authorisation procedures is undermined. And that is why it is important for commentary on the number of modifications to warrants to appear in the Annual Report. None does – so we have to rely on “hope”.

The Report also notes that 192 warrants were signed by the Scottish Government; this relates to policing matters which is a devolved matter. If we assume that the rate of warrants per head of population for the police is a constant (i.e. the Scottish population of 5 million is as criminal as the “rest of the UK” population of 56 million), then the “rest of the UK” should have about 2,150 warrants for policing alone.

However, the actual total number of reported warrants for the rest of the UK is 1,514 and this covers all policing plus prisons and all the national security agencies. This means that either the rest of the UK need far fewer warrants, or the Scots need more warrants, or that in “the rest of the UK” warrants are drafted differently from the Scottish equivalents. For instance, if the rest of the UK warrants were far more widely drawn with respect to authorised communications interception than the Scottish ones, then obviously you need fewer of them (especially as there are 3.5 modifications to come).

Given that the Report covers the period when New Labour Ministers were at the helm of surveillance authorisation in Westminster, and an opposition SNP Minister was authorising in Edinburgh, it is not difficult to guess which of the three options above is the more likely.

If this hypothesis is correct, the 600+ figure describing the discrepancy in the number of warrants signed by Ministers measures New Labour Ministers’ toleration of broadly defined surveillance practices.

Note an implication for future Annual Reports. If there were to be more warrants signed by Coalition Ministers reported, then this does not automatically mean there has been more interception. It could mean that surveillance practices have been more precisely defined before being authorised and more warrants are needed to cover the same range of interception.

Whatever the reason, the numbers appear to reveal a major difference in operational practice with respect to warrant authorisation by Scottish and Westminster Ministers that needs an explanation. One should have been given in the Annual Report as it is very easy to see the issue from the statistics.

Now to the current political debate about Local Authority surveillance. The Report indicates that there were 525,130 requests for communications data of which 1,756 requests were made by Local Authorities. Hence to remove Local Authorities from access to communications data (0.33% of all communications data requests) will not change much.

So any journalist, privacy activist or politician who argues that Local Authorities should not have to access communications data and that this is “a major privacy gain”, is in effect, deluding himself. This is because 99.6% of all access to communications data are excluded from his analysis.

The Report also indicates that other ad-hoc bodies account for a further 2,259 requests. If this is added to the Local Authority requests and subtracted from the total number of requests, we are drawn to the conclusion that approximately 520,000 requests for communications data are made by the police and security services per year. Now each request could cover a large number of individuals or telephones (this is explained in blog of 9/9/2009 – see references), but we can at least assume that each request has to cover at least 2 individuals (the caller and the called).

If we assume that each request for communications data involves at least two people over the age of 15, then the 520,000 requests involve at least 1.04 million adults. As there are 51 million adults in the UK, we can then evaluate that about 1 adult in 50 has been subject to this form of communications surveillance by the police or security services per year.

This translates into a New Labour GASP of 0.02 and the true number is probably much higher! The 1 in 50 number is quantifiable as New Labour’s surveillance legacy and it also benchmarks how the new Coalition Government approaches the issue. One should add that it is much larger than the GASP reported by the Daily Mail on its front page last September (see references).

Whatever the arguments about numbers, it is clear that the Interception of Communications Commissioner should have been able to explain something to reassure the public. He should recognise that it is not the number of requests that should be reported, it is the number of individuals who have been subject to communications data surveillance or the average number of individuals affected per request. Only then will the true scale of state surveillance will become apparent.

However, I leave a final statistic to the reader. How many marks out of 10 do you give an Annual Report that is intended to reassure the public that RIPA works properly, but which misses all of the above?

END blog

More about the Governmental Annual Surveillance Probability (or GASP).

As the GASP is a probability it has to be a number between 0 and 1. When GASP=0, then there is no communications surveillance, but if GASP = 1 (this is known by privacy activists as “the last GASP”) there is total surveillance. Surveillance at the family level (say 1 in 10) is GASP = 0.1. GASP = 0.04 (1 in 25) would be the probability that one of your friends would be under communications surveillance. So it follows that New Labour’s GASP = 0.02 shows a high degree of surveillance.

References:

My comment on the Daily Mail story (9/9/2009) is on http://amberhawk.typepad.com/amberhawk/2009/09/is-one-adult-in-78-subject-to-surveillance-of-their-communications.html.

Population statistics from Office of National Statistics and Wiki.

Annual Report of the Interception of Communications Commissioner for 2009. http://www.official-documents.gov.uk/document/hc1011/hc03/0341/0341.pdf

Note: Please see the comments associated with the Blog. Evidently the number of warrants signed is not all the warrants associated with national security. This is explained at section 5.1 of the Annual Report in a single sentence. This does not change the analysis substantially.

Spending Review? Why not axe the Information Commissioner?

I have come to the conclusion that there is a credible argument to scrap the Office of the Information Commissioner. “No” I have not lost my marbles. Nor have I received a backhander from Google to fund our new Amberhawk web-site. This is a credible argument that can be made, especially at a time when deep public sector cuts are going to be announced next Wednesday.

As you know, the Minister for the Cabinet Office, Francis Maude MP, blows hot and cold with Freedom of Information.  First he announced at the Conservative Party Conference that he will change FOI legislation (presumably the Freedom Bill) so that FOI requestors can commercially exploit any information released by a public authority. Second he has simultaneously ordered a leak inquiry when a document which listed the Quangos under the threat of the axe. (This 20 page list was published by the BBC - see references).

If you look at this Quango list one sees that the Information Commissioner’s Office is to be retained as is the Office of the Surveillance Commissioner. For some reason, the Human Rights Commission and the Interception of Communications Commissioner do not feature on his list so one assumes they are safe.

All these four bodies have a role in protecting privacy. So my cost-cutting solution is to merge all four bodies into one super-regulator whose collective function is to oversee privacy protection across the board.

Just look at the advantages.

•    With respect to Article 8 of the Human Rights Act, you would have a single regulator who could protect individuals from the excessive use of wide ranging secondary legislation (by ensuring the processing of personal data was “lawful” in a human rights context) and report to Parliament about defects in primary legislation before it is enacted.

•    You would have a single point of contact for those individuals who allege their privacy has been invaded.

•    With respect to interception of communications and covert surveillance, you would not have the lead regulators, appointed by the politicians, and reporting to the politicians who have a vested political interest in the outcome of any interception or surveillance. It is easier to argue that such a combined regulator should directly report to Parliament.

•    With respect to decision taking on important privacy matters, you would have a range of Commissioners and a collegiate decision making process. With the current mish-mash of Commissioners, you have a single individual making important decisions.

•    With respect to investigations by the regulator into possible malpractice, you would have a critical mass that would allow best practice to emerge. Currently, each Commissioner has a small investigations group employing a number of techniques and different practices

•    With respect to staff, you would streamline administration and retain front-line staff by offering a wider range of career paths (e.g. someone could start in data protection and realise that they are more interested in equal opportunities).

•    With respect to privacy policy development, you would have a Commission that could report to Parliament with unrivalled authority and experience.

•    With respect to the national security agencies, these bodies would be seen to be subject to independent scrutiny in a way that the current fragmented system of scrutiny denies.

•    With respect other regulators that have powers in relation to privacy (e.g. OFCOM or the Financial Services Authority), their role in relation to privacy protection should be transferred.

In other words, this recession provides an opportunity to restructure all the Commissioners that have fingers in the privacy protection pie. The “cuts” provide an opportunity to reorganise privacy protection into a coherent form that integrates all aspects of data protection and the respect for private and family life.

This is a win-win scenario. The Conservatives get their “cuts” and the Lib Dems get their enhanced privacy protection. That is why it should appear in next week’s Spending Review.

References

The list of quangos at risk is on http://www.bbc.co.uk/news/uk-politics-11405096

Those of you who are interested in the background, should look at “Nine principles for assessing whether privacy is protected in a surveillance society (Parts 1 and 2) – 2008 on http://www.amberhawk.com/policydoc.asp

Project Champion Report misses the target when discussing CCTV surveillance, privacy and data protection

Yesterday, the Chief Constable of West Midlands went on TV to apologise for its plans to undertake comprehensive and overt CCTV surveillance of all cars and individuals who entered or left the Sparkhill area of Birmingham. This apology is even though “No cameras associated with the Project have ever been used” and the publication of an investigation into “Project Champion” by the Chief Constable of Thames Valley Police (see references for details).

Having read the report, I think Project Champion (if switched on!) would have been fully in accordance with the data protection law as it is, and from a purely legal perspective there is nothing for the police to apologise for. The reason: the lack of data protection obligations that apply to protect individuals when overt mass surveillance is undertaken for a national security purpose.

Project Champion and all its surveillance paraphernalia is a Counter Terrorism Operation that started in response to significant threats in 2007. The idea was to place overt surveillance cameras around certain areas of Birmingham to capture comings and goings, rather in the same way that Transport for London’s Congestion Charge cameras are used by the Metropolitan Police (see references).

As with Transport for London cameras, the national security exemption can be invoked. This allows the police to apply an exemption for personal data from any of the data protection principles if the exemption "is required for the purpose of safeguarding national security”. When this exemption is claimed, there is no need to obtain proof. However, if the exemption is challenged (e.g. by the Information Commissioner) then a certificate signed by a Minister of the Crown stating that exemption was needed for safeguarding national security “shall be conclusive evidence of that fact”.

To the eternal credit of Transport for London and the police use of images obtained from its Congestion Charge cameras, it insisted that there should be a Certificate in existence before it would co-operate. That is why Home Secretary, Jackie Smith, had to sign one into existence (see references for a copy of that Certificate).

The national security emphasis of the Birmingham system explains why the management and day to day operation of the Project was to be outsourced to the Olive Group. This is no ordinary CCTV management company as can be seen from the company’s publicity material.

This states that the “Olive Group has a proven covert surveillance capability, and can deploy teams at short notice to conduct foot or mobile surveillance in urban or rural environments. Using experienced operators and state of the art technical surveillance equipment, Olive can covertly collate intelligence, and importantly can conduct effective counter surveillance measures”.

So can we agree Project Champion is no ordinary (and cuddly?) CCTV system like the ones we have in most of our city centres. The Automated Number Plate Reader (ANPR) data was intended to stream into the police’s ANPR database where it would be kept for at least two years and the CCTV system was not for a general policing use (this is explicit on page 33 of the Report).  There were discussions to introduce a general policing element to the surveillance but “the project plans were not amended to reflect the new purpose” (see page 49 of the Report).

As soon as you buy into the prospect that the system was a Counter Terrorism surveillance system, then certain things become obvious. First, there is no need to be “fair”, so if you mislead thousands of people (and Councillors) into thinking that it is a “normal CCTV system” (e.g. like those under local authority control) then this does not breach the fairness arm of First Data Protection Principle once it is certified.

Not convinced?  Just look at the scope of Certificate that applies in London; there is an exemption from all the key rights and the First, Second, and Eighth Data Protection Principles. You can’t breach a Principle if it is exempt!

So when the report states that there was “very little evidence of consideration being given to compliance with the legal or regulatory framework”, I answer that I am not surprised. From a data protection perspective, such consideration is largely unnecessary because of the breadth of the national security exemption (e.g. as certified for Transport for London cameras). Even if you were to consider the data protection framework, then you would swiftly conclude that because if the exemption and the certification process, most of Act was unlikely to apply!

This can be expressed more brutally: why pussyfoot with the ICO’s CCTV Code of Practice when the key data protection principles are likely to be certified as being exempt.

So what is missing from the Report? Well you do not implement a system like without funding and advice from the Home Office and the national security agencies. There is nothing in the report about this aspect. So what did the Home Office know about this project? What did Ministers know? What privacy safeguards, if any, did they ask for?  What advice did they give? Was a national security certificate discussed? What funding was given to the project? etc etc

I should add this thought. The Home Secretary from this time was Jackie Smith, the West Midlands MP for Redditch, who had signed the Transport for London Certificate. Is it credible that she was kept in the dark about the mass CCTV surveillance in Birmingham, the nearby major city? So perhaps someone should ask her to comment on the obvious Watergate questions: what did she know and when did she know it?

Let’s also be clear what I am concluding about the Report. I think the report into Project Champion is assuming that the system was supposed to become a “normal” CCTV system and its recommendations relate to a failure in implementing a “normal” CCTV system (e.g. one that relates to general policing).

However if the CCTV/ANPR system was NEVER intended to be a normal CCTV system then it had nothing to do with normal policing. It follows that the Report’s analysis is likely to have begun from the wrong starting point and this could jeopardise some of its conclusions (important though they are for normal policing).

That is why I suspect the report into Project Champion may be incomplete. It has missed out on the real issues that surround such mass surveillance by not discussing the effect of the national security exemption.

The fact is that there is no effective counter-balance to this national security exemption that leaves society very exposed to similar mass surveillance systems in future. If you don’t believe me on this one, you should read my Transport for London blog below and look at the corresponding Certificate.

References: Project Champion Report is on http://www.west-midlands-pa.gov.uk/documents/main/7/Project_Champion_Review.pdf. The press release  saying the cameras have not been switched on is at http://www.west-midlands.police.uk/latest-news/press-release.asp?id=1890

See the blog about the Transport for London (TfL) Congestion Charge Cameras on http://amberhawk.typepad.com/amberhawk/2009/10/can-national-security-agencies-disclose-communications-data-or-anpr-images-to-anybody.html. This explains why that the national exemption is so broad that it permits the disclosure of CCTV/ANPR images to anybody on the planet (e.g. any national government agency including the unsavoury ones) for any purpose (e.g. for a purpose that has nothing to do with crime and national security).

The TfL National Security Certificate is on http://www.statewatch.org/news/2007/aug/uk-london-tfl-exemption-certificate.pdf

Note – just to be sure:  This blog relates to the data protection considerations that relate to surveillance when it is  overt (e.g. by CCTV cameras visible to the public); I am not considering covert surveillance by hidden cameras that is subject to RIPA.