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.
Great blog - as provcative as ever!
Posted by: Martin H | 01/10/2010 at 04:52 PM