UK Liberty

Quite

Posted in database state, ID Cards by ukliberty on March 27, 2009

Shami Chakrabarti in the Times:

… After the events of 9/11 it was assumed that people didn’t care about their privacy any more and would buy into an idea that security is more important. I say that we should start with the idea that people have a fundamental right to privacy that you interfere with only for a very good reason.

Government has been too lax about passing data between different departments for different purposes. Further, it has not won people’s trust that it can manage databases properly. When setting up a database we should ask: “Is it necessary? For what purpose are we holding the information? Is it excessive? Who has access?”

The National Identity Register is a case in point. Over the past decade I have been told it was for counter-terrorism, immigration control, benefit fraud. If you are not clear about your purposes, how can you ensure appropriate information storage and use? …

Pathetic

Posted in database state, detention without charge, DNA database, surveillance society by ukliberty on March 26, 2009

David Goodhart in Prospect magazine:

We are not living in a police state. Not even a remotely authoritarian one. In fact we, all of us, have never enjoyed so much liberty—personal, political and legal. Yet to assert this view sets one at odds with a large part of liberal opinion in Britain. 

… When I read the actual litany of complaint against the government, I felt unmoved. Forty-two days detention without charge and control orders (which apply to just 17 people)?

David thinks it’s fine to put N people under house arrest without trial provided N looks like a little number.  

He’s not alone in this – this notion is also advanced by the Government when it wants to persuade us to accept yet more liberty infringing legislation (for example, secret inquests).

Yet the cases so affected will perhaps be the most controversial and therefore most deserving of scrutiny.

The Government’s word that this person must be kept under house arrest for secret reasons may be enough for David, but it isn’t for me.  

And I believe strongly that everyone is entitled to know the charges against him and have a fair trial.

True, 42 days (which was rejected by parliament) is a long time but suspects are under constant judicial review—and both measures were a response to a real threat, something that never seems to feature in the liberty lobby discourse.

Um, in fact it does feature in the “liberty lobby discourse”.  The question here is, is 42 days – which is by the way the longest pre-charge detention period in the civilised world, and we’re lucky it isn’t 90 days – a necessary and proportionate response, or should we get off our arses and come up with a way to try these people?

Then there is the surveillance state—CCTV cameras and DNA databases.

Our ‘surveillance state’ consists of rather more than that.

Nowhere have I heard of innocent people suffering injustice as a result of either technology

Then open your effing ears: two council CCTV camera operators were jailed for four and two months respectively for spying on a naked woman in her own home, for example.

… What is going on here? Of course there are some serious issues concerning the database state. But why do so many intelligent people appear to hold such disproportionate views about this subject?

Part of the answer is simple enough: the left (and right) needs a club to beat a government with, especially a betraying Labour government.

An obvious counterpoint is that supporters of civil liberties have been complaining since Labour came to power and before.

Now that Iraq is fading from view, or even coming good, a new club is required. Another reason was pinpointed by Rafael Behr in the Observer on 15th March: “Why are we liberals so pessimistic about liberty? It’s as if we secretly crave repression to give us a sense of political purpose.” As he points out, most of the organisers of the Liberty Convention are members of the establishment. For the privileged and influential, freedom is banal. So these liberal babyboomers with a romantic view of political struggle are tempted to invent a repressive state that gives their activism a more heroic purpose.

Of course! We civil liberties supporters are delusional.  The database state is a figment of our imagination; our perception of an erosion of our civil liberties is really a manifestation of our secret craving for repression.  I’m glad David has opened my eyes.

… We are moving from a world of privacy by default to one in which privacy must be designed into our systems. The modern social democratic state needs lots of data about us in order to fulfil the demands we make on it; not just trivial things like our bank account details to pay in pensions or tax credits but much more personal things like health records—to make sure we get the right treatment at the right time.

If there is too much suspicion of the state, and too many data protection rules, the state cannot give us what we want. Equally, if there are no rules or inadequate rules to protect the more sensitive information about citizens then there is the potential for abuse, either accidentally or intentionally. At present we risk getting the worst of both worlds.

There is a third aspect to this: the quantity of information stored.  I’m not entirely sure the state needs to know everything about me. But that is what we are approaching (if we are not already there).

Certainly there would be less suspicion if the Government didn’t behave so suspiciously.

There are countless examples of good public service ideas that are falling foul of unnecessary restrictions. In Southwark, for example, there has been a successful experiment with a “one-stop shop” bereavement service that helps (often old) people deal with all the bureaucratic complications when a close relative dies. It was hoped that this would be extended to the whole country, but as different rules govern various national databases, they cannot share information with one another. Jack Straw has tried to change this [this is a reference to Clause 152 of the Coroners and Justice Bill], but in March he had to scrap the idea after coming under pressure from civil liberties groups.

This is a really pathetic argument.  But again its something that the Government itself advanced.

You’ll note that Clause 152 does not mention bereavement – the power is rather more widely drawn.

This is a Bad Thing.

The reason why David’s argument is pathetic is that such a bereavement service doesn’t require legislation in the first place: the individual can just go to Southwark and tell them that their family member has died and Southwark informs up to “9 Local Authority (internal) departments of the death, it also officially notifies several Central Government agencies delivering benefits and pension services, general registration, driver’s license authority and tax credit support services”.  

In short the individual chooses to tell Southwark about the bereavement and Southwark tells its contacts on the individual’s behalf.

This is a Good Thing and I don’t see any reasonable person objecting to it. 

Giving Ministers such a broad power is a Bad Thing. Do read  NO2ID’s Parliamentary Briefing on the Coroners and Justice Bill.  Clause 152 will return.

Similarly a plan to replace the current humiliation and delay of applying for free school meals with a single, national website (able to share data across relevant departments) has been held up.

I’m not sure what David is referring to here.

There are big challenges ahead—such as who should be on the DNA database, and how the new database to monitor web use should be overseen—and the government has not set out clear and principled positions on these or many other aspects of the database state. It is also true that parts of the state, in particular the police and local authorities, sometimes take a cavalier attitude to the existing protections.

But it has set out clear positions: everyone must be enrolled on the DNA database after contact with the police, no matter whether they are innocent, charged, or convicted, no matter how old they are, no matter what the offence.

They have been told by the European Court on Human Rights that this position is contrary to the European Convention on Human Rights and must therefore be changed.

Nonetheless, the liberty lobby is unimaginatively one-sided. People want privacy where it matters, but they are also prepared to trade it off for other things—like safety from terrorism, or to stop tragedies like Baby P.

People have an inadeqate understanding of risks and an inadequate understanding of what databases can do and how they can be abused.  It is to the shame of Ministers that they play on this lack of understanding and take advantage of fear in order to churn out ever more legislation and databases.

In fact, people happily give up their privacy every day to private or public bodies in return for the smallest convenience. Take Google’s new “latitude” website. It allows you to register your mobile phone. If you do this, and your friends do too, you can see where everyone is on a map, located by the chip in their phone. On a night out in central London, or in downtown New York, this could be very useful: has everyone got to the party or are they already moving on? Latitude has caused a minor storm among the privacy lobby—but you can be sure it will be popular. 

The clue there is in the fact that one may choose to opt-in to Google’s service.  Google didn’t come along to us and say, “you will enrol or you can’t have a passport / benefits / work in the air travel industry / etc” and you can opt-out when you like, too.

It might be useful if we started to see our data as similar to tax, something we willingly surrender to the authorities in return for various benefits, but over which there is also a political negotiation about how much to surrender. The liberty lobby, in this analogy, becomes the Thatcherite Taxpayers’ Alliance of the database state—wanting individuals to hoard their data and leaving the state powerless to serve citizens as it could. 

Er no, I recognise that the public sector needs some data in order to serve us.  Does it need all it has?  Does it need all that the Government proposes to collect?  Does it need to be shared as the Government sees fit?

Moreover, by turning these complex, technical debates into a story of noble defenders of liberty versus cynical, power-grabbing tyrants (whether politicians or officials) the liberty lobby reinforce the lazy anti-politics of the age—a sort of Ukip for the chattering classes.

Pathetic.

The reality is made very clear by Guy Herbert in the NO2ID briefing on the Coroners and Justice Bill:

Buried among the numerous complicated and controversial provisions of this legislation is a single clause, clause 152 in the first draft of the Bill, which is a profound threat to privacy, liberty and the rule of law. It is enabling legislation that converts the Data Protection Act into a machine for massively increasing the dealing by government in information of all kinds. It is designed to allow ministers to use a fast-track regulatory procedure to sweep away data protection, human-rights considerations, confidentiality, legal privilege, and ultra vires when they would stand in the way of any use, acquisition or dissemination of information in pursuit of departmental policy. The availability of broad data-sharing along these lines would be a profound change in the way the country is governed, potentially altering the function of almost all other legislation. It should not be introduced at all, but certainly not without proper public debate. There has been no such debate. …

The developing philosophy of government by information management that we characterise as “the database state”, has become Whitehall orthodoxy without any systematic public debate, and the ISO should be regarded as the outcome of a desire to manage the citizen centrally as a single file, rather than permit separate relationships with separate organs of state, and of an impatience with mediating institutions such as parliament and the rule of law. In this view, information sharing is seen as one-sidedly good for everyone. This is set out very clearly in a series of official documents on “Transformational Government”. …

We think that the “barriers” are not random obstacles. They are principles that have evolved in the courts and been captured in statute precisely because they protect things in human life that are worth protecting. …

Aaronovitch on that JRF report

Posted in database state, DNA database by ukliberty on March 24, 2009

See the Times.

Aaronovitch seems to ignore S & Marper v UK, which is cited by the FIPR’s report. What need for the FIPR report to repeat the detail?

Well, perhaps they should have because it seems Justice Ministers and journalists don’t do footnotes.

I quote from the judgement, with my emphasis in bold:

118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.

119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

Blanket, indiscriminate, irrespective of the offence, indefinite, limited possibility of removal, no provision for independent review. 

That is what makes the system unlawful under the Convention.

Aaronovitch asks how the system should be improved.

The clues are surely implicit in the judgement: discriminate according to the nature of the (suspected) offender and the offence, time-limit the retention, improve the possibility of removal, provide for independent review.

The judges even gave us an example “notably consistent with Committee of Ministers’ Recommendation R(92)1, which stresses the need for an approach which discriminates between different kinds of cases and for the application of strictly defined storage periods for data, even in more serious cases (see paragraphs 43-44 above).”

And guess what, it’s in the UK: Scotland.

Not too far to go for some lessons on how to run a legal system.

36.  Under the 1995 Criminal Procedure Act of Scotland, as subsequently amended, the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted (section 83 of the 2006 Act, adding section 18A to the 1995 Act.). Thereafter, samples and information are required to be destroyed unless a Chief Constable applies to a Sheriff for a two-year extension.

What’s wrong with discriminating between the innocent and those who have been found guilty of committing a crime?  What’s wrong with discriminating between different offences?

Why would in Aaronovitch’s words, “a just society … surely regard it as “proportionate” to treat everyone in the same way”?  Surely it is disproportionate to treat shoplifters the same as murderers?

It might be useful to have a look at spent convictions, too:

A spent conviction is a conviction, which under the terms of Rehabilitation of Offenders Act 1974 can be effectively ignored after a specified amount of time. 

The amount of time for rehabilitation depends on the sentence imposed not on the offence. 

If you were 17 or under when found guilty the rehabilitation period is usually half the time if you were 18 or over. 

What’s wrong with discrimination in this context?

Green Paper on Rights and Responsibilities launched

Posted in Bill of Rights (and Responsibilities), politicians on liberty by ukliberty on March 24, 2009

Finally.  How exciting.

Ministry of inJustice:

Published on: 23 March 2009

A Green Paper on constitutional reform, launched to start a national debate about the future of rights and responsibilities.

The paper explores if our rights and responsibilities should be drawn together in one place, perhaps in a Bill of Rights and Reponsibilities, so they are easily accessible and understood. It suggests a range of subjects that might be covered by such a Bill, including equality, good administration, children’s well-being, healthcare, criminal justice, victims’ rights and the environment.

And – hold on to your hats – they’ve actually got some examples of responsibilities:

Finally, although not necessarily suitable for expression as a series of new legally enforceable duties, it may be desirable to express succinctly, in one place, the key responsibilities we all owe as members of society, with a view to reinforcing the imperative to observe them. Such responsibilities could include treating National Health Service and other public-sector staff with respect; safeguarding and promoting the wellbeing of children in our care; living within our environmental limits for the sake of future generations; participating in civic society through voting and jury service; reporting crimes and co-operating with the prosecution agencies; as well as more general duties such as paying taxes and obeying the law.

My word… I have the responsibility to obey the law.  I didn’t realise.

More soon.  Betcha can’t wait.

Anderson vs Wills

Posted in database state, DNA database, politicians on liberty, privacy, surveillance society by ukliberty on March 23, 2009

Professor Ross Anderson:

Database State is a report we’ve [the FIPR] written for the Joseph Rowntree Reform Trust on the failings of public-sector IT in Britain, and how to fix them. There’s press coverage in the Guardian, the Mail, the Independent, and the Telegraph. … 

More news coverage in the Daily India, the Standard and elsewhere.

Do read William Heath’s comments – he helped write the report. In particular,

In summary, Transformational Government comes from a bad place. There may or may not be implementation problems, but that’s not the point. (Correction – there are and will be huge implementation problems. But it’s still not the point). It was never designed, in any formal sense, to help us. And the political class and the CIO community seems to be oblivious or to have overlooked the fact that much of what they are undertaking is illegal.

I’ve made a transcript of Professor Anderson’s appearance on the Today programme on Radio 4.  I’ve made a couple of comments in-line.

Presenter Jim McNaughtie (JM): Just because I’m paranoid it doesn’t mean they aren’t out to get me. So runs the old joke. Today’s report on government databases from the Joseph Rowntree Reform Trust suggests it’s perfectly rational to be worried about the way the government collects and holds information about us all. Its conclusions will be welcome news to people like Steven Clark, who was arrested last September after taking pictures at the Labour Party conference in Manchester. He was released without charge but his DNA remains on record. 

Steven Clark: It’s worrying that they would keep everyone’s DNA the way they did. I think if someone is arrested like that and there isn’t even a charge brought against them they shouldn’t take the DNA in the first place. They should only take the DNA if there is a charge and they should only keep it if there is a conviction. Even though I wasn’t charged with an offence, and even though the European Court of Human Rights has ruled that they’ve actually abused my human rights by keeping it. 

JM: I’m joined by Professor Ross Anderson from Cambridge, who wrote today’s report, and Michael Wills, the Minister in the Justice Department responsible for this area. Good morning to you both. 

Ross Anderson (RA): Good morning. 

Michael Wills (MW): Good morning. 

JM: Professor Anderson, what exactly did you look at and what did you find? 

RA: We looked at the 46 databases that hold information on all or most of us, which have been built or expanded in the last ten years. We assessed them firstly for safety, secondly for privacy, thirdly for effectiveness and value for money, and fourthly whether they complied with European Law. What we found was about a quarter of these databases and systems are clearly almost certainly in breach of the European Convention on Human Rights, including as our caller said, the DNA database which was actually convicted in the European Court. And more than half of them have got serious question marks over them. 

JM: And why exactly in your view are they illegal? What do they – what offence do they commit, if you like? 

RA: European law gives us the right to privacy in the sense that our sensitive personal information about your health, your sex life, your religion and so on, can only be shared either with your consent, or under a law which is sufficiently tightly drawn to let you tell what will be done with information you supply and which is proportionate and necessary in a democratic society. Unfortunately our own data protection law doesn’t come up this standard, and in effect privacy regulation in Britain is broken just as banking regulation was. 

JM: Well in a moment I’m going to ask Michael Wills to respond to some of that. But can you just focus our minds on this – give me an illustration of when one of us might find that a bit of information that is held about us is misused in the manner you are talking about. 

RA: Well, we have a particularly distressing example from a pregancy charity in Oxford, which has reported that now that GPs are sharing information with social workers in some parts of the country, where new systems have been rolled out, that poorer women are reluctant to tell GPs about post-natal depression, because they’re worried that the social workers will take their baby away. 

JM: And GPs are reporting that is a fact, that they are observing? 

RA: This is being reported by [inaudible] which is a pregancy charity in Oxford. 

JM: Well Michael Wills, that’s a very vivid illustration of the broader problem that Professor Anderson says he’s identified. Do you accept his basic charge, that a number of these databases, a quarter in fact, are not operating within the law? 

MW: No, I don’t. What I do accept is that we’ve always got to be concerned about this area. We’ve always got to be concerned about these issues of privacy. But what the report doesn’t do is tell you what some of the advantages of these databases are, and this isn’t just about- 

JM: Sorry, it’s important you should say that, but I just want you to answer first his charge that these things are illegal. 

MW: Well, I’ve just answered his charge- 

JM: What, by just saying no? 

MW: Which is no, and I’m going to go on and say that I think it’s also important that in this very very sensitive area, that we understand that the government has to strike a balance in all these things. Of course we’re concerned about the things Professor Anderson is concerned about. We must be. It’s very important to people, it’s about their privacy. But we don’t just enter into this area trying to compromise privacy. There is a balance to be struck between all the advantages of these databases and you cannot talk about this topic without understanding that there are real advantages for the public. And that isn’t just about the more effective delivery of public services, it’s also about the detection of crime.

 

I think public sector databases already get a lot of positive publicity from the Government, don’t you?

But it’s curious that Michael Wills criticises the report for not talking about the benefits – although in fact the report does say what the databases are intended to do – when I don’t recall him criticising the Government for not talking about the disadvantages.

 

And it’s also, as we saw last week, about preventing and remedying miscarriages of justice. If it was not for the existence of DNA and DNA databases, innocent people might still be in jail.

Ah.  Now who’s qualifying what he’s saying?  Last week’s case, that of Sean Hodgson, has little if anything to do with the DNA database. Hodgson was cleared of a 30 year old murder because a sample from the scene was retested using modern techniques and compared against his sample (11 years after the Forensic Science Service said they no longer had the relevant samples). A better – but rather more of a counterpoint – is the case of Kevin Reynolds. His DNA profile, already on the National DNA Database, together with evidence from the scene, provided exculpatory evidence that the authorities proceeded to ignore.

JM: OK, all right, I understand all that, but could you just expand a bit on your reason for simply saying that Professor Anderson is wrong to say that these things are illegal, and he does so as you heard him say, on the grounds that the rules for governing what happens to our information are not sufficiently tight and don’t comply with European law? 

MW: Well, the problem with this report is that it’s a dramatic headline and not much argument behind it- 

JM: Well would you care to deal with that one? 

MW: I was going to carry on and say exactly why I think that. I want to say the reasons for that, of course we will scrutinise the report with great care, we will provide a response to all the allegations, we will send them to Professor Anderson and we’ll give him a chance to reply to that response. So we’re not complacent about this and we will respond line by line to this report. But as it stands, it’s not at all clear what evidence the Professor and his colleagues have relied upon to reach the judgements they’ve made, it’s not clear what the methodology is that they’ve used to make their judgements. He says and I quote, “it’s almost certainly illegal”, and those words are very telling, “almost certainly”- 

RA: All right, well he’s here so let’s ask him. What is your evidence? 

RA: Well, the evidence is in the report, it’s 64 pages and a couple of hundred footnotes. On the legal argument we produced an earlier report on children’s databases that set that out in enormous detail. The evidence rests on particular judgements from the European Court, such as I v Finland, which gives us the right to medical privacy. That is clearly broken by two of the large NHS databases that we rate as red. There are also other judgements which lead us to give red assessments to nine other large government systems. But- 

JM: Michael Wills points out that you use the phrase “almost certainly illegal”. Why that qualifier if you’re so sure of your ground? 

RA: Well, there’s nothing ever certain in litigation and even a case that you think is certain can always be lost. But it must be said that one of these databases, the National DNA Databases, has actually been found to be in contravention last year by the European Court of Human Rights [S & Marper v UK] and we think it’s almost inconceivable that the two NHS databases we rate as red would not be found to be in contravention of the law. 

JM: Michael Wills, I think you wanted to come in there. Go ahead. 

MW: Well I do, I do, because we’re hearing all these qualifications. Neither the Professor nor none of his colleagues are lawyers. There is no evidence in the report of the way they have reached this conclusion.

I’m sure people will make their own minds up about that.

In some cases they have speculated about databases that don’t exist yet on the basis of speculative newspaper reports. If they want to provide us with the methodology and the detailed evidence – he talks about all the pages but he deals with 46 databases in that, it’s not a very extensive argument, a lot of the evidence he gives for his conclusions are actually just descriptions of the databases and sometimes speculative descriptions of databases that don’t exist. 

Why is this so unreasonable?  If one was to describe a database that involved the blanket and indefinite retention of everyone’s personal data, it’s reasonable to claim – based on precedent – that such a database would almost certainly be found illegal.

JM: I don’t think we’re going to settle that question here. Michael Wills can you deal just briefly with the specific example of reports that doctors are finding that poorer women are reluctant to report cases of post natal depression because they fear that information will go to social workers. 

MW: Well of course that must be a matter for concern and we’ll look into it. And when we have specific examples of unintended consequences, and this appears to be just that, of course we’ll look into it and if necessary we’ll change the way that database operates. We can’t be oblivious to the consequences and that’s why we’ll take this report and every other such report extremely seriously. If changes need to be made we will make them. 

JM: Michael Wills, Professor Ross Anderson, thank you both.