The Surveillance Commissioner has attacked police for circumventing the law on covert surveillance by building personal profiles of targets from ‘open’ internet sources. In a report published last month, the Surveillance Commission said that the increasingly used practice of processing internet data to build a profile of individuals or groups meets the definition of covert surveillance and should not be taking place without formal authorisations.
The report findings could have implications for a number of policing bodies, including the National Domestic Extremism Unit which trawls internet material from blogs and social networking sites to build profiles of activists and protest groups.
The report stated:
My Commissioners have expressed concern that some research using the Internet may meet the criteria of directed surveillance. This is particularly true if a profile is built by processing data about a specific individual or group of individuals without their knowledge.
It is inappropriate to define surveillance solely by reference to the device used; the act of surveillance is the primary consideration and this is defined by RIPA (Regulation of Investigatory Powers Act 2000 section 48(2-4) (monitoring, observing listening and recording by or with the assistance of a surveillance device). The Internet is a surveillance device as defined by RIPA section 48(1). Surveillance is covert “if, and only if, it is conducted in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is, or may be taking place.” Knowing that something is capable of happening is not the same as an awareness that it is or may be taking place.
The Surveillance Commissioners report, labelled as ‘highly significant’ in a short technology piece in the Guardian, has otherwise attracted remarkably little media attention. As well as the revelations about police profiling, it also makes several other astounding criticisms of covert surveillance practices.
The authorisation of undercover policing in domestic extremism
The report criticises what is called the ‘lead force model’. This is the procedure by which an undercover cop employed by the Domestic Extremism Unit, but deployed in South Wales, for example, has to be authorised by the Chief Constable of South Wales Police. The Chief Constable of South Wales Police, however, will have very little information available to him, and will be unable to question any aspect of the deployment.
The Surveillance Commissioner states this means the authorisation of undercover officers sent to spy on political groups is, in effect, a rubber stamping exercise, and suggests that it would be open to effective judicial challenge if anyone were to bring a case.
"The problem with this approach...is that the relevant authorising officer may not know the history of the deployment or its future plans; he is presented with a fait accompli where a refusal to authorise may have wider implications."
"I do not accept the argument that the lack of case law means that current processes are necessarily correct and compliant with legislation. There are, no doubt, cases in which undercover processes could have been effectively challenged before a trial judge but, for one reason or another, no challenge was made so no judicial ruling was given."
Retention of data
The Surveillance Commission accuses the police of failing to make ‘much effort’ to destroy personal information obtained covertly from people who were not the intended targets. This so-called ‘collateral intrusion’ into the lives people who have may themselves done nothing unlawful, is of no value to the investigation, but data obtained in this way appears to be routinely retained by the police.
"I do not detect much effort by some authorising officers to make adequate arrangements for the destruction of product which was the result of collateral intrusion or not of value to the investigation or not properly authorised. The default solution appears to be in favour of retention.”
Monitoring the movement of vehicles
Tracking vehicles is a form of covert surveillance, which requires authorisation. But the report suggests that the police are by-passing the proper procedures to track vehicles using a combination of Automatic Number Plate Readers (ANPR) and the Police National Computer (PNC). This means that an undisclosed number of vehicles may have been tracked by the police over the last year.
"I am less happy to discover that the proper ANPR authorisation process can be circumvented using the Police National Computer. I do not desire to prevent the use of this very useful tool, but the ease with which ANPR can be used for directed surveillance demands that authorisation processes should not be circumvented."
Sharing information with private covert organisations.
The report raises questions on the nature of co-operation between public authorities and private investigators, bailiffs and other private sector organisations which carry out surveillance. The report hints that there is a growing tendency for public authorities to engage private sector firms to carry out covert surveillance on their behalf, with little regulatory oversight.
"There is also an increased use of non-public enterprises which may use covert techniques…I lack the capability to oversee an increasing number of entities and most will operate without my oversight. Some of these entities conduct covert surveillance but have a close relationship with one or more public authorities. Public authorities should be very careful in their cooperation with private enterprises and should have in place arrangements which clarify responsibility and liability in the event of challenge."
The Office of the Surveillance Commissioner is not renowned for its radicalism. This is, after all, an establishment organisation, and when a body of this type to make such strident criticisms of covert policing practices it suggests things are pretty bad. What happens next, however, is another matter. The Surveillance Commissioner has an inspection role, not an enforcement one, and realistically can do little to change police behaviour that doesn’t want to be changed.
Policing units such as the National Domestic Extremism Unit, which conducts covert surveillance and deploys undercover officers to spy on political activity, operate behind a thick veil of secrecy. Freedom of Information requests are routinely refused, and the move from ACPO to the Metropolitan police has done nothing to increase their transparency. The public are not permitted to know the way in which they operate, the extent of their role, or even what their annual budget is. With so little in the way of effective public accountability, it is little wonder they feel empowered to flout the law and circumvent authorisation.