Legal Aspects of Information Society

Legal Aspects of Information Society

The Information Commissioner has written about the dangers of “sleepwalking into a Surveillance Society.' Considering the background to the Commissioner's work and publications, indicate whether you feel concerns are justified?

Introduction

The erstwhile Information Commissioner[1] Richard Thomas (2002 – 2009) on 16th August, 2004 raised a warning that the UK might be “sleepwalking into a surveillance society.”[2] His concern was borne out of the prevalence of the use of surveillance technologies with numerous Closed Circuit Television camera schemes (CCTV) mass collection, storage, processing and sharing of citizen's personal data in public and private databases typical of ‘East German Stasi-style snooping.''[3] He was particularly perturbed about the implementation of a biometric National Identity card scheme, a National Identity Register and a database for all the children in the UK from birth to 18.[4]

The Information Commissioner thereafter commissioned a research through the Surveillance Studies Network (a group of academics) to ascertain the nature, character and extent of surveillance practises in the UK. The report of the research “A Surveillance Society''[5] (‘the Report') revealed that the use of large public and private databases containing citizens personal data and surveillance technologies were pervasive in the UK. Richard Thomas indeed said: “Two years ago I warned that we were in danger of sleepwalking into a surveillance society, Today I fear that we are in fact waking up to a surveillance society that is already all around us.''[6]

The report prompted an enquiry by the Home Affairs Committee ( ‘HAC''thereafter) of the UK parliament to consider the growth of numerous public and private databases and forms of surveillance so that it can make rules for Government to follow when building up increasing amounts of sensitive and private information on the general public.

This essay will consider the Information Commissioners report, the public debate that followed as a result of the Home Affairs Committee's enquiry. The recommendations set forth in the report of the Home Affairs Committees and the Government's response to the HAC's report. It will critically examine these reports in the light of the Information Commissioners warning about the dangers of“sleepwalking into a Surveillance Society.' The examination of the reports and the Governments response is in a bid to

Lastly, we shall establish whether the Information Commissioners warning is indeed justified, whether a liberal democracy is in fact becoming a police state.

Background

“Some forms of surveillance have always existed as people watch over each other for mutual care, for moral caution and to discover information covertly.”[7]

Advancements in the 20th century changed the way people changed the outlook of surveillance with analogue technology, surveillance activity increased considerably as magnetic video and audio tapes served as a storage media for surveillance data. Digital technology, microchips and advanced computers in the 1990's, with solid state hard drives, made surveillance more evasive, intrusive, efficient and cheaper to deploy.

In the 21st century technology has changed the way we live, work, play and pay. There is an overarching emphasis on information gathering, processing and use. Surveillance has assumed epic proportion as a panacea to risk, crime, threats of violence and terror attacks.

The September 11, 2001 terror attack on the USA and London bombings of July 7th, 2005, hitherto privacy concerns were traded for safety and security.[8] In the private sector the internet, the database and e-commerce more people buy and sell goods or services on – line than in store, internet fraud and identity theft is rife. The response to these threats to the modern society has led to increased surveillance of the individual from mass collection, processing, storage, transfer of data and the use of other forms of surveillance in the prevention of crime, promotion of efficiency, productivity and a better delivery of public services and benefits. There has been an insatiable appetite in the private and public sector to acquire more individual information in the attainment of business success, efficient provision of services and for the security and safety of the society.

The massive use of these technologies however is not without its consequences on existing privacy and data protection legislation, as these laws do not adequately resolve the challenges posed by modern technology with regard to data gathering and data sharing.[9] The current UK Data protection Act was passed in 1998 a time when most of these technologies were either in contemplation or their use was not so widespread.

The Information Commissioners report

Surveillance Society: Definitions, Issues, Consequences

Summary

In the report ‘A Surveillance society' the term initially used to describe the surveillance society in the 1970's “after the first wave of computerization of organizations''[10] was ‘Big Brother' from George Orwell's dystopian novel ‘Nineteen Eighty-Four (1984) published in 1949. In the novel, George Orwell described a totalitarian state where every action of the citizens of London, the Chief City of Airstrip One were watched by the party leader ‘Big Brother' ‘with Posters of the Party leader,Big Brother, bearing the captionBIG BROTHER IS WATCHING YOU'[11] posted everywhere. Hence the actions of all the citizens were observed monitored and controlled by Big Brother's 24 hour surveillance. Strictly speaking of a surveillance society, what readily comes to mind is a totalitarian state or a dictatorship that uses surveillance to observe, monitor and control its citizens, freedoms are restricted and the individual is perpetually trailed. However this depiction is not exactly true of today's surveillance society.

The report stated that:

“The surveillance society is better thought of as the outcome of modern organizational practices, businesses, government and the military than as a covert conspiracy. Surveillance may be viewed as progress towards efficient administration, in Max Weber's view, a benefit for the development of Western capitalism and the modern nation-state.''[12]

Surveillance can be viewed as progress towards efficient administration reflecting Max Weber's view that surveillance is a benefit for development of western capitalism and the modernization of the state. With the surveillance society vast amount of records can be collected, stored and accessed easily. Advancement's in communications technology (birth of Information Technology) computerized networks; databases; the Police and military are equipped with improved intelligence gathering, identification and tracking techniques. The surveillance society in this context is a product of modernity an outcome of bureaucracy borne out of a desire for efficiency, speed, control, and coordination.[13]

Notwithstanding, the gains of the surveillance society in organizing society, there are disadvantages of the modern day surveillance as follows:

* An inadvertent keystroke error can cause considerable damage to data held of persons in a database; the data held can be mined, sold without consent or lost.[14]

* The data can be used for other purposes other than that which they were collected, for instance the recent the terror attacks and threats in USA and UK has caused people with Muslim or Arabic names to be treated differently at airports, they are thoroughly searched as potential terror suspects and their names put on no fly list.[15]

* The information held about for the report recognizes

Definitions

The report defined a surveillance society as ‘a society which is organised and structured using surveillance based techniques.'[16] It also explains the process of surveillance as,

“....having information about one's movements and activities recorded by technologies, on behalf of the organisations and governments that structure our society. This information is then sorted, sifted and categorised, and used as a basis for decisions which affect our life chances. Such decisions concern our entitlement and access to benefits, work, products and services and criminal justice; our health and well-being and our movement through public and private spaces.”[17]

Every day, life in a surveillance society people are increasingly monitored using;

* Video cameras: CCTV cameras[18] in public and private locations watch the citizen's movement; the cameras are becoming more sophisticated with face recognition models; ANPR's to monitor speed limit violators.

* Electronic tags are used to track people on probation, and a huge DNA database containing profiles of any person arrested but not convicted.

* Biometric ID cards[19] are used to prove identity when accessing public services, biometric data (finger print and iris scans) are embedded in the ID card linked to a massive database of personal information. The biometric data serves as identifiers[20] for the individual.

* Smart cards are used by some schools to monitor children, their movement and their activities.

* Credit/debit cards/supermarket loyalty cards connected to databases are analysed by software that monitors and predicts spending habits, personal finances, our addresses and who we are, such data could be sold all kinds of businesses. A call to a service centre or an application for a loan, mortgage or other facility is determined based on the information analysed by the software.

* Information stored about our foreign travel.

* Phone calls, e-mails and activity on the internet are monitored for keywords by British and American Intelligence agencies “ ECHELON”[21]

* Employers monitor their employees for productivity and performance using CCTV, (overt and covert) employee call and internet monitoring, GPS (for tracking movement) and access cards, RFID chips and routine alcohol and drugs testing.

The report stated that surveillance can be either be ‘purposeful, routine, systematic and focused attention paid to personal details, for the sake of control, entitlement, management, influence or protection, we are looking at surveillance.'[22]

According to the report the focused approach is the most prevalent form of surveillance today in the UK it involves using identifiable personal data[23] that can be linked to a person or persons, these details are derived from transactions, exchanges, statuses and accounts and are automatically sorted, categorised, monitored, transmitted or sold using Information Technologies. Roger Clarke refers to focused surveillance as ‘dataveillance.' [24]

CONSEQUENCES

Privacy, Ethics and Human Rights

The report has it that the present practice of surveillance today poses a threat to our personal privacy, information about our lives that we otherwise presume is known only to us is in the public and private domain. The way we live, where we live, what we do and where we go, what we say. Our rights to private and family life as provided for Art 8 of ECHR is negated by practices of surveillance, data about us is used to shape our opportunities in deciding what we can get and what we can do in society.

Social Exclusion and Discrimination

Surveillance is said to vary from location, people, ethnicity gender and groups. The sorting of personal information collected from people increasingly determines a lot about them based on criteria fed into computer systems. Human discretion is traded for computer intelligence, the computer decides our opportunities based on a criterion that it has been programmed with, to exclude some people once a certain detail does not tally with the instruction. For instance an on – line employment application form filled could be returned in a minute rejecting an applicant citing “qualification and experience” does not match the role whereas the computers decision is based solely on the information about a person's ethnic origin or income bracket. Where does equal opportunity then come in? A person of African descent has less chances of getting employed; a Muslim is more likely to be searched thoroughly at the airports in the light of the previous terror attacks and the recently botched December 25th, 2009[25] attempted terror attack.

Choice, Power and Empowerment

The individual is not in a position to determine what goes on with his personal data after he has furnished it, he cannot control the purposes that the information would be used for. An arrestee's finger print and DNA profile is collected[26] and stored in the police data base and held there even if he is not eventually charged and convicted, he would be seen as recalcitrant if he declines to provide it.

Transparency and Accountability

Individuals and groups often find it difficult to know what happens to their personal information, “who handles it, when and for what purpose.”[27] People hardly know what happens with their personal data because they are not aware of the other uses. People are either too busy with work or do not bother about the consequences of such data held. Data controllers on their part do not always reveal all the purposes for which the data is collected or why surveillance is used. Data controllers covertly use the data to determine what a person gets or how the person is treated. The data controllers in the public and private sector ought to be transparent and accountable for the data they collect.

CHARATERISTICS OF SURVEILLANCE

According to the report Surveillance takes

Social sorting involves the classification and categorisation of personal data based on certain criteria it may be based on income bracket, status (citizen, immigrant or foreign student) adult or minor, ethnic group or gender, the outcome is used to delineate “target markets or risky populations.”[28] This limits people's life chances; it ends up ordering society along those lines. A person or group is then defined by the information about him by on a technological process.

Data flow: Data from surveillance technologies flow around interoperable computer networks seamlessly, movement of vast amounts of data made possible by modern information technology techniques, with the click of a button so much data can be transferred with so much ease.

Function Creep personal data “collected for one purpose and to fulfil one function,”[29] assumes other roles as they move in databases and networks migrate to other ones that intensify surveillance and privacy invasions beyond what was originally understood, and considered socially, ethically and legally acceptable. This occurs discretely owing to networks and data interchange. Human consequences of function creep are all often unknown, ignored or downplayed. Oyster data used by the Police for investigation of crimes (from public to private).

Technologies Surveillance involves the use of technologies, these technologies have become innocuous, evasive yet ever so intrusive creeping into our daily lives without a sign. CCTV cameras are getting smaller and smarter with audio enabled models,[30] computers can process more data than we can imagine, and databases have become smaller yet with enormous storage capacity. These technologies pry into our private space without our even knowing. Computers do all the work collect all the data and human discretion is no more exercised since the computers do the thinking and give results.

[1] Head of the UK's Information Commissioners Office an independent official authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy to individuals. The Commissioner is responsible for administering the provisions of the Data Protection Act 1998, Privacy and electronic communications 2003 the Freedom of Information Act 2000 and the Environmental Information Regulations2004 http://www.ico.gov.uk

[2] Ford, Richard: ‘Beware rise of Big Brother state, warns data watchdog' The Times(London) August 16, 2004 http://www.timesonline.co.uk/tol/news/uk/article470264.ece

[3] Ibid

[4] Ibid

[5] ‘A Surveillance Society'' Report presented at the 28th International Data Protection and Privacy Commissioners' Conference 2, November, 2006 http://www.ico.gov.uk/upload/documents/pressreleases/2006/waking_up_to_a_surveillance_society.pdf

[6] Ibid

[7] Ibid note 5 pg 1

[8] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001(Public LawPub.L. 107-56)

[9] See Section 3 of the UK's Data Protection Act 1998

[10] Ibid note 5 pg 5

[11] Orwell, George: Nineteen Eighty – Four; culled from: http://books.google.co.uk

[12]Ibid note 5 quoting from; Gerth, H. and Wright Mills, C. (1964) From Max Weber, New York:

[13] Ibid note 5

[14] ‘Brown apologises for records loss', BBC News 21 November 2007 http://news.bbc.co.uk/1/hi/7104945.stm

[15] Martin, Daniel & Gardener, David :Tougher air checks for SOME travelers: Britain could follow U.S. lead over 'terror' nations Daily mail (London)5th January 2010

http://www.dailymail.co.uk/news/article-1240391/Body-scanners-approved-anger-ethnic-profiling.html

[16] Ibid note 5

[17] Ibid

[18] There are up to 4.2m CCTV cameras in Britain - about one for every 14 people, with a person appearing 300 times a day: BBC NEWS: Published: 2006/11/02: http://news.bbc.co.uk/1/hi/uk/6108496.stm

[19] Ibid note

[20] Wood ward, John D, Orlans Nicholas, M and Higgins, Peter T: Identity Assurance in The Information Age: BIOMETRICS, (California: Mc Graw Hill Osborne, 2003) Pg 27

[21] Bomford, Andrew, Echelon Spy Network revealed: BBC News 3 November, 1999 http://news.bbc.co.uk/1/hi/503224.stm

[22] Ibid

[23] CCTV images, biometrics such as fingerprints or iris scans, communication records or the actual content of calls, or most commonly, numerical or categorical data

[24] Clarke, R. (2006[1997]) ‘Introduction to dataveillance and information privacy',

http://www.anu.edu.au/people/Roger.Clarke/DV/Intro.html#DV

[25]‘ White House: Failed Airline Bombing Was Attempted Act of Terrorism; Fox News 26th December ,2009 http://www.foxnews.com/story/0,2933,581153,00.html

[26] Henderson Damien, Police: we must keep DNA of everyone arrested :The Herald 22nd Feb, 2008 http://www.heraldscotland.com/police-we-must-keep-dna-of-everyone-arrested-1.875245

[27]

[28] A Surveillance Society: Summary

[29] Ibid

[30] Police may use CCTV for eaves dropping: Nov 27, 2006 http://www.contractoruk.com/news/002971.html

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