Liberty and the state: The state can no longer rely on the misplaced belief that privacy must be sacrificed for securityLiberty’s policy department usually writes for audiences in parliament and Whitehall. If there’s a golden rule for effective engagement it’s this: avoid hyperbole. It undermines your message and alienates the audience. So, when writing on privacy issues, all talk of “Big Brother”, “Orwellian”, and “1984” has definitely been discouraged. Earlier this year it struck me that perhaps I had been erring on the side of caution when I was asked to speak at an event organised by the parliamentary IT forum. The title? “Big Brother Britain.”
Liberty has long battled against the “nothing to hide, nothing to fear” fallacy that presumes only criminals place any premium on their privacy. If any good is to come out of the HMRC lost disc fiasco it is possibly that people will not continue to take such a complacent approach to their private information in future. Opinion polls certainly seem to indicate an increasingly critical public turning against such privacy relevant subjects as the compulsory identity card scheme. The early years of this century were marked by an understandable, if misplaced, belief that privacy was an expendable luxury to be sacrificed in the name of security. It seems the state can no longer rely on this reservoir of goodwill.
Much of the credit for this is due to the information commissioner, Richard Thomas, and his office. Thomas, whose post is filled on government recommendation, has skilfully navigated a tricky path. He has frequently been constructively critical of government policy while staying within the boundaries required of independent public sector officials.
The information commissioner’s conference this week in Manchester will provide an opportunity to assess what can be done about the “surveillance society”. Liberty will be using its platform at the conference and our new report “Overlooked: Privacy and Surveillance in Britain”, to set out our priorities in helping address the privacy imbalance between state and individual. Of course, legitimate surveillance and information sharing is necessary to prevent crime and terrorism and allow public services to operate. However, we also need proper protection and accountability in a world dramatically changed over the last decade. Some moves, like scrapping ID cards, are relatively straightforward. However, much more is needed.
At the top of the list is the need to review the legislative framework of privacy protection. As it approaches its 10th anniversary, the Data Protection Act 1998 (DPA) is looking dated. The protection it provides is being outstripped by the ever-increasing capabilities of mass information data processing capabilities. There is also a need for specific statutory regulation of CCTV. A new CCTV act could ensure fewer and better CCTV systems, meaning less privacy intrusion and better crime detection capability.
Better laws are of little use without proper enforcement. This necessitates greater resources and increased powers for the ICO. Following the HMRC debacle the government has promised the ICO new spot-check powers, an important first step towards a far more proactive role. The lost discs episode also provided an accidental snapshot of ever-increasing levels of data matching and data profiling of personal information that take place daily. The ICO needs to be in a position to ensure data profiling is used with proportionality.
The use of intrusive surveillance for crime detection and national security purposes is, by its nature, secretive. There is, however, much that can be done to increase accountability without jeopardising security. The most invasive surveillance, including phone tapping, should be authorised by a court rather than by a government minister, as currently permitted. In addition, sheer volume issues might make judicial authorisation impractical for less intrusive surveillance methods, currently used by public bodies ranging from local authorities to the Food Standards Agency. However, the role of the various commissioners who oversee these types of surveillance could be expanded to allow greater scrutiny and auditing capabilities.
Today, DNA can be permanently retained for everyone arrested for any but the most minor offences, even if they are then released without charge. This needs to be reviewed urgently. Many thousands of innocent people, including children, have had their DNA sample held, as do three-quarters of all black men. With limited scope for rolling back the grounds of allowing DNA to be taken, the duty to remove samples of the innocent and minor offenders must be explored.