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Court limits police surveillance powers

Thursday, May 21st, 2009

By Dominic Casciani |

The Court of Appeal has limited police powers to keep pictures of protesters in case they go on to break the law.

Judges said police had been wrong to retain pictures of a lawful arms trade activist who was not suspected of any criminal offence.

The Metropolitan Police said they acted reasonably in retaining pictures of the campaigner, Andrew Wood from Oxford.

Welcoming the judgement, Mr Wood said that the onus was now on the Met to review its retention policies.

The court has told the Met to destroy the photographs if it does not challenge the ruling in the House of Lords. The force has indicated it will not appeal.

Mr Wood argued that police had harassed him and infringed his right to privacy when he lawfully attended a company’s annual general meeting (AGM) meeting in April 2005.

Reed Elsevier, a global publisher, had become the parent company of an arms fair exhibitions organiser called Spearhead.

Mr Wood and other campaigners bought shares in Reed Elsevier so they could attend the AGM and ask directors to justify this move.

Following the meeting, Mr Wood said Metropolitan Police officers openly photographed, questioned and followed him. Police did not accuse him of breaking the law and he was not arrested.

Mr Wood said the incident had been alarming and the police quickly established he was a law-abiding member of society.

Last year the High Court agreed with the Metropolitan Police that its actions were reasonable because officers need to detect crimes that may have occurred in the past or may do so in the future.

Ruling overturned

But overturning that ruling, Lord Justice Dyson said: “The retention by the police of photographs taken of persons who have not committed an offence, and who are not even suspected of having committed an offence, is always a serious matter.

“The only justification advanced by the police for retaining the photographs for more than a few days after the meeting [attended by Mr Wood] was the possibility that the appellant might attend and commit an offence [at a later arms fair].

“Even if due allowance is made for the margin of operational discretion, that justification does not bear scrutiny …”

Lord Collins of Mapesbury added that the substantial police presence that confronted the arms campaigners had a “chilling effect” on those seeking to protest lawfully. A third dissenting judge said the Met had acted reasonably.

The judgement does not ban specialist police cameramen and photographers, known as Forward Intelligence Teams, but it does say the long-term retention of their pictures must be justified on a case-by-case basis.

Crucially, the ruling echoes a landmark privacy decision against the England and Wales DNA database at the European Court of Human Rights.

That judgement last December said police could not justify keeping forever the DNA profiles of people who were never charged with a crime.

Mr Wood welcomed the judgement saying the police would now have to review its retention policies.

“The police don’t just uphold the law - they must abide by it. They now have a duty to assess the photographs they keep,” he told the BBC.

“If there is no criminal investigation then this ruling surely means they must get rid of the image. I expect them to go through photos and test them against the law. “

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Privacy: British Government Refuses To Investigate Phorm

Thursday, May 21st, 2009

By Tom Espiner |

The Prime Minister’s Office has rebuffed a public call for a government investigation into Phorm, saying that the independent Information Commissioner’s Office is responsible for ensuring that the behavioural ad-serving technology does not contravene privacy laws.

On Tuesday, Number 10 published a response to an e-petition that had called for an investigation of Phorm’s technology by the government, and a ban on its adoption by internet service providers if it was found to breach European or British privacy laws. Phorm intercepts user data traffic to anonymously profile people and serve them adverts based on their web-browsing behaviour.

In its response, Number 10 said privacy legislation was enforced by the Information Commissioner’s Office (ICO), adding that the ICO “is an independent body, and it would not be appropriate for the government to second-guess [ICO] decisions”.

“ICO has been clear that it will be monitoring closely all progress on this issue, and in particular any future use of Phorm’s technology,” the Prime Minister’s Office stated. “They will ensure that any such future use is done in a lawful, appropriate and transparent manner, and that consumers’ rights are fully protected.”

However, the ICO told ZDNet UK on Tuesday that while it could enforce the Data Protection Act, it had no remit to enforce other privacy laws, such as the Regulation of Investigatory Powers Act (Ripa).

“The [intercept] issues that have been raised around Phorm are not a matter for the ICO,” assistant information commissioner Jonathon Bamford told ZDNet UK. “We have no statutory role in relation to Ripa.”

Various organisations, including the Foundation for Information Policy Research, have asserted that Phorm’s interception of user traffic, prior to anonymising the data, contravenes Ripa.

The regulatory body which oversees Ripa is the Office of Surveillance Commissioners (OSC). However, that office only oversees Ripa in relation to public authorities such as the police and intelligence services, and does not look at possible Ripa contravention by private companies. However, Bamford suggested that regulators such as OSC should monitor the private sector too.

“There’s a gap there,” said Bamford. “No-one performs the same role [as the ICO does with data protection] in relation to Ripa.”

‘Passing the buck’
Jim Killock, director of digital-rights organisation the Open Rights Group, told ZDNet UK that Number 10 was dodging the issue of scrutinising the legality of Phorm. “Clearly, the ICO doesn’t have a role in intercept,” said Killock. “Number 10 is passing the buck to an organisation which doesn’t have that responsibility, which is at best obfuscation.”

Killock added that the legality of Phorm’s service under Ripa should be examined. “You shouldn’t be intercepting data traffic without the clear consent of all users involved,” said Killock. “If you intercept a communication, everyone involved should give clear, informed consent.”

Privacy legal expert Vanessa Barnett, a partner at Berwin Leighton Paisner LLP, told ZDNet UK on Tuesday that “ultimately only a judge can decide” the legality of Phorm’s service.

“Under Ripa, interceptions are lawful if the interceptor has reasonable grounds for believing that consent has been given. That consent must be freely given, specific and informed,” said Barnett. “And that’s the rub: have the individuals been made sufficiently aware of what is being intercepted, and have nonetheless decided it’s OK to be monitored and profiled in this way?”

However, Marc Burgess, senior vice president of technology at Phorm, told ZDNet UK on Tuesday that Phorm’s interception of user traffic, prior to anonymisation, was legal.

“[Phorm] is definitely legal under Ripa,” said Burgess. “Users must give their consent before they can use the service.”

Burgess added that the definition of ‘intercept’ in Ripa means making the contents of a communication available to other people or organisations, but that Phorm’s intercept devices sat on service provider networks and performed filtering before making any data available for scrutiny.

“This information is passing through [sealed] black boxes,” he said. “It’s a filtering and whitelisting process.”

An inquiry into possible regulation of the ISP industry was launched by the All Party Parliamentary Group on Communications (apComms) in April. The government committee is to examine issues including behavioural advertising and deep packet inspection.

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Pointless ID Card project has no flicking point

Thursday, May 21st, 2009

By John Oates |

The Home Office has confirmed there is still no timetable for the rollout of ID card readers, without which carrying out effective ID checks is impossible.

So even though the government is continuing to foist the cards on foreigners, airside workers at City of London and Manchester airports and pilots, there is no way to check the cards are genuine. Official advice is to flick the cards with a fingernail because they make a distinctive noise.

Home Office minister Phil Woolas told the House of Commons yesterday that there was no schedule for the distribution of ID card readers to police stations, border entry points, job centres or local authorities.

He said: “In time, card readers will be made available so that the cardholder’s biometric and biographical features can be checked against the card, although a timetable for their introduction has not been established.”

The cards are already being handed to foreign nationals with leave to stay, and the lucky people of Manchester will get the chance to hand over £60 to get their hands on a card from later this year. Wacky Jacqui Smith has previously claimed that people can’t wait for ID cards.

The point of the cards was to provide biometric checks of identity. That information is held on a chip within the card - without a reader there is no way to access this information.

Anyone using the card to identify someone is advised to flick the card to check how it sounds. If they still have concerns there is a phoneline with further advice.

It emerged in February that the government was pushing ahead with issuing cards despite the lack of readers.

Tory leader David Cameron has promised to scrap the scheme if elected. ®

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