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The Convention on Modern Liberty: a personal view, part two

In this article, I’ll provide an overview of what was said at the Surveillance in Scottish Society sessions of the Glasgow Convention on Modern Liberty.

Please note however that there were parallel sessions on democracy (in the morning) and the liberty of vulnerable groups (in the afternoon) which I cannot cover.

Also the article below is constructed from rather haphazard notes and already fuzzy memories, but I hope it will convey a decent overview of my experience.

Surveillance in Scottish Society: Morning Session

After a brief introduction from Professor Mike Nellis (see below), the session kicked off with four talks:

  • The first speaker was Patrick Harvie, MSP and Co-convenor of the Scottish Green Party. Starting on the topic of how privacy was treated in Scotland vs down south, Mr Harvie referred initially to the situation of the retention of DNA from suspects. In England, anyone arrested or anyone who volunteers DNA to a police investigation will have their DNA retained regardless of whether they’re subsequently charged with or convicted of any offence. Scotland’s approach is less draconian in that such retention would only occur for those convicted of serious offences, and then for a maximum of 5 years, though Mr Harvie noted DNA samples might also be taken from those subjected to various orders. The two important questions Mr Harvie suggested needed addressing are: Is your DNA your property? and Does/should the state have the right to take it?

    Moving on, Mr Harvie also noted the Scottish Parliament had repeatedly opposed the National Identity Scheme, and that the SNP-led executive had introduced a Privacy Working Group, emphasising that Scotland tended to treat privacy matters more sympathetically than England. However he had various reservations, noting that the tendency of ministers to be won over by civil servants towards schemes that may erode privacy wasn’t absent in Scotland, and thus there is still some slow erosion going on, and the problem is wider than which party is in power. CCTV is prevalent in Scotland and we’re also seeing increasing use of biometrics in schools. The transformational government program (which produced the data sharing proposals amongst others) also has its equivalent in Scotland, and one can also mention the entitlement cards which have the potential to be a back door National Identity Register.

    Finally, he raised a theme that got repeated mention during the day, namely that we must not neglect the private sector’s intrusions into privacy, e.g. the way they use information from store cards, or other information about peoples transactions with them. Not only does this give private sector organisations power over people, and may involve de facto compulsion but the government may demand this information from the private sector themselves. The prime example I can think of on this is communications data held by phone and internet companies but which numerous public bodies have powers to demand for the purpose of investigating crimes.

  • Next up was John Scott, a leading human rights lawyer based in Edinburgh. He started off by citing a US judge describing privacy as the right to be let alone, before going on to suggest that Glaswegians express the desire for privacy with the “greeting” (I should add for context that this is often said in at least a slightly menacing tone) “what are you looking at?”.

    Noting that most of the recent incumbents of the Home Office, and the Prime Ministership for that matter, had invoked the classic “nothing to hide, nothing to fear” argument, he also highlighted that the government had managed to alter the terms of debate such that people opposing measures that intrude on privacy and civil liberties often had to justify the opposition rather than the government justifying the intrusion. (ITSM “the nothing to hide argument” is a classic illustration of this point). He suggested that we should not need to justify our privacy and that in his view, the realm of individual privacy was steadily shrinking.

    Regarding privacy and its place in Scottish law, Mr Scott said the traditional view was that no specific right to privacy was recognised (the Human Rights Act changes this) and that privacy was rather undefinable. On public opinion, he cited Eurobarometer polls showing widespread support for surveillance to combat terrorism and at the same time that 76% of Britons were concerned about the protection of privacy. Finally, he suggested that people should politely ask the government: “what are you looking at?”

  • Professor Mike Nellis of Strathclyde University, provided a third talk, about the use of electronic tagging to deal with offenders. His main message was that a technology that was initially looked at as a panacea, and then later as being useless, has in fact become widely used and people now have a realistic attitude towards it. Citing evidence that compliance was high (at least whilst the offender was tagged) he argued that it is in fact a reasonable option for dealing with offenders that helps free up prison space, and improve “community” supervision of offenders.
  • Finally, we had a talk from Ken MacDonald, the Assistant Information Commissioner for Scotland. He started off noting that he is not to be confused with Ken MacDonald, QC who confusingly had been speaking at the London Convention that morning, and that this issue highlighted the problems identification systems can face. Mr MacDonald reiterates that Scotland’s public authorities have a much better handle on privacy issues than their English counterparts, though he’d like to see more privacy oriented activity at the Scottish Parliament, though he grants that there too some good work goes on. He cited the Protection for Vulnerable Groups Bill which started off as a highly intrusive measure but which became far less intrusive after people focussed on precisely what information needed to be shared and amended the bill to limit the sharing of information to only what was needed.

    Regarding the private sector, Mr MacDonald reminded us that the government often grabs data from the private sector, citing communications data and the proposed centralised database of this data as the prime example. He then moved on to talk more about the role of the Information Commissioner’s Office. He said it was initially rather limited able only to act when data had been bought or sold illegally, however since the HMRC fiasco, they can now levy fines for negligent handling of data, which can be upto 6 or 7 figures. They can also perform spot checks to examine data protection practices in public sector organisations, and that they are calling for this to be extended to private sector organisations.

Following the talks, we had questions from the floor and discussions involving both audience and speakers.

One of the more interesting interventions was from a speaker who identified himself as a “dangerous public official” who works for local councils. He defended the Regulation of Investigatory Powers Act saying that prior to the act there were no legal constraints on the use of surveillance powers by public authorities, and that if it were repealed then, we’d only be able to fall back on case law related to the right to privacy in the ECHR. Indeed he claimed RIPA was introduced to try and bring public authorities into line with the ECHR. He suggested that surveillance powers were subjected to tests of proportionality and necessity and that the paperwork involved itself meant that officials were unlikely to use it frivolously. My own thoughts on this were that he was talking about directed surveillance rather than, e.g. the power to demand communications data and was thus thinking mainly in terms of one part of a very large piece of legislation. I intend to return to this topic in more detail in a separate article later.

In response to a question I asked about the data sharing powers, John Scott agreed that the power to issue a report with non-binding recommendations within 3 weeks of the issue of an information sharing order is no safeguard at all. Ken MacDonald said he expected changes to the legislation which was much broader than the Information Commissioner’s Office felt necessary and the original proposal was more limited. My own take on the original proposal can be read here. Patrick Harvie also agreed, but also pointed out that Scotland had shown in other areas, e.g. DNA, how we can come up with different models for dealing with issues than down south and expressed hope this could be applied here. It occurred to me the main problem with such an approach as the Wesminster can always pull the rug from underneath, especially if clause 152 passes.

One speaker, responding to Mike Nellis’s talk asked about chipping people. Professor Nellis pointed out that the electronic tagging of offenders (using bracelets) that he talked about was a limited usage of a particular technology that he supported but he accepted the scope for abuse of other technologies as they were developed. He also suggested people look up a company called Verichip to see what sort of things are already being tried or planned in this line.

Surveillance in Scottish Society: Afternoon session

Introducing and chairing this session was Dr Geraint Bevan (see below) and he introduced the following talks:

  • Dr William Webster, Lecturer in Public Management at Stirling University’s Management School, gave a talk on the “Myths of CCTV”. He laid out 5 myths regarding CCTV:
    1. That CCTV works. He said the evidence suggests it works only in limited circumstances, but otherwise there was no reliable evidence that it reduced crime.
    2. That CCTV is everywhere. In fact, publicly owned, or publicly operated CCTV was relatively rare, the vast bulk of CCTV is privately owned and operated. Personally, whilst the clarification is important, it does not mean that this really is a myth.
    3. That citizens want CCTV. He said the polls that suggested citizens want CCTV ask them based on the assumption that it works, so it is not clear whether support would actually be so high if they were informed that there’s little evidence for CCTV’s effectiveness. My problem with this argument is that rather than show public support is absent, it provides a reason for thinking public support may be based on public ignorance or possibly skewed questions. It provides reason to be sceptical of the claimed public support without actually showing that support is a myth.
    4. That citizens understand CCTV. He said people tended to assume CCTV was constantly monitored when in fact in many schemes it isn’t. Some involve fake cameras, others involve footage that will only be viewed after the fact if a crime occurs, others still involve automated monitoring by machines. Also, the very name CCTV is anachronistic since today’s surveillance cameras are mostly not “closed circuit”.
    5. That CCTV is there to protect us and reduce crime. Webster argues here that in fact there are often a range of objectives behind these schemes, such as intelligence gathering, evidence gathering, (in some cases) protecting national security, controlling anti-social/undesirable behaviour, deciding how to direct police resources and the gathering of parking fines, with the protection/crime reduction elements being used to persuade the public.
  • Dr Richard Jones, Lecturer in Criminology at the University of Edinburgh, gave a talk on Security Theatre. The term was coined by Bruce Schneier to describe “security measures” that merely reassure people, attempting to make them feel secure, without actually doing so. Jones suggests that much of what we see with airport security, and the government’s pushing of measures such as facial recognition, CCTV, mass surveillance and ID cards, are arguably security theatre. The problems he highlighted with this approach are that by providing the illusion of security, it can lead to complacency, that it often ignores expert opinion as to how to best secure things, that it can both stoke up and play on fear including irrational fears, that it can be used for political gain and may even be a trojan horse to get measures someone wants enacted accepted on grounds other than those that they actually want the measure for. It can thus end up promoting policies for which there is little or no evidence. Jones also addresses an argument in favour of the use of security theatre in certain circumstances. The argument is that where people have an irrational fear, or an exagerrated perception of risks, security theatre may calm people down and reassure them and may thus be a public good. However Jones argues that this is treating the symptoms of deeper problems and may encourage further irrationality.
  • Next up, Jo Swinson, MP, observed that each assault on liberty had been justified via arguments about security, yet the reality was that the laws concerned were being used against people who posed no threat whatsoever, e.g. Maya Evans arrested for reading out names of Iraq war dead at the Cenotaph, Walter Wolfgang ejected from the Labour party conference using anti-terror laws simply for heckling or councils using intrusive surveillance against people for trivial reason. Regarding the use of surveillance to monitor people’s use of bins, Swinson dubbed this phenomenon as the “recycling Stasi”. Moving on, Swinson argues that erosions of liberty that initially are limited in purpose often expand in purpose later, citing the wartime ID cards that initially were used for 3 clearly specified purposes, but which had epxanded to 39 purposes by the time they were abolished. She also pointed out that the plans for a database of communications data would effectively turn everyone into a suspect, whilst the government’s attitude to freedom of information showed hypocrisy in that they tried to prevent scrutiny of their own actions whilst insisting on knowing ever more about the general public’s actions.
  • Finally, Dr Geraint Bevan of NO2ID Scotland spoke. Asking “are we a nation of citizens or subjects?” he answered that we’re becoming a national of suspects. After explaining how the NIR works and describing the transformational government programme, Dr Bevan echoed Phil Booth’s earlier message regarding the data sharing clauses in the Coroners and Justice Bill, urging people to write to both their MSPs and their MPs, because there is a legislative consent motion due to go to the Scottish Parliament that would essentially mean the Scottish Parliament would not debate the issue and would let Westminster decide the issue without any sort of intervention (in contrast to Holyrood’s opposition to ID cards). Currently it seems that both the SNP and Labour are in favour of the data sharing powers. Dr Bevan also suggested that one of the drivers behind the powers was the desire for the sharing of medical data with researchers and pharmaceuticals and pointed out that the Thomas/Walport review was partly written by the chief executive of the Wellcome Trust, who would benefit from such sharing of data.

As with the morning session, there was time for questions and discussion afterwards. One member of the audience pointed out that white can cause “flaring” in cameras and suggested that on demonstrations the wearing of white “bunnets” might cause problems for CCTV or other official filming of the protests. Another person, pointed out that if ID cards were really voluntary it begs the question of “how does one leave the scheme?”. Inquiries about this question did not yield an answer.

Jo Swinson was asked if she was confident the Tories would reverse the attacks on liberty. She said she’d be more confident if David Davis were still Shadow Home Secretary, that there were liberal elements within the Tory party but she wasn’t sure they were in charge.

Another audience member, David Goldberg, from the Campaign for Freedom of Information, after talking about Bentham’s panopticon and its relation to modern surveillance, pointed out that the government argued that legal advice it received regarding compliance of legislation with the ECHR was protected by client/lawyer confidentiality, thus preventing the public from finding out how the government concludes that its legislation complies with the ECHR.

Patrick Harvie, this time speaking from the audience, asked if we could make people aware of liberty, via “liberty theatre” (cf security theatre), whilst another speaker spoke about how academia is now required to police immigration by checking up on foreign students and providing information to the government and asked how this can be effectively challenged.

Conclusion

I hope this conveys a good flavour of the talks and discussions that occurred on Saturday. No doubt there is much I’ve missed and there may be stuff I’ve misremembered or misunderstood. If anyone spots a mistake or feels I missed something important, do let me know via the comments facility.

In the meantime, I found the talks and discussions thought provoking and stimulating and would like to thank all those involved for their contributions.

Finally, for the third and final part of the series of articles, I will address the question of “what next?” and how those who attended the Convention, whether in Glasgow, London or elsewhere, can build on the convention to help stop and reverse the erosion of civil liberties that we have seen over the last 15 to 20 years.

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