The Register, and the mainstream media report:
Snoop-happy councils warned off RIPA abuse
'Or they'll take our toys away'
By Chris Williams
Published Monday 23rd June 2008 10:06 GMT
The head of the Local Government Association (LGA) has today warned every council in England to restrict how their investigators use new surveillance powers, or risk losing public support.
Sir Simon Milton's letter follows a recent rash of news stories exposing how councils nationwide have been using the Regulation of Investigatory Powers Act 2000 (RIPA) to monitor dog fouling and littering. He urged councils to review how they authorise surveillance to ensure that only more serious transgressions such as fly tipping and benefit fraud are tackled by such means.
Excessive, petty snooping, using RIPA powers by Local Councils seems to cross party political lines (it is not just NuLabour who are at it) , and it needs to be stopped, well before it gets linked to Hazel Blears' "tension monitoring" plans for "community" snooping and informing.against arbitrarily defined "troublemakers" and political opponents.
All Council Leaders
23 June 2008
As you know, the use by councils of surveillance powers under the Regulation of Investigatory Powers Act (RIPA) has attracted a substantial amount of publicity recently. Most of this has been negative and also often grossly inaccurate; but the news stories have also stimulated public debate and comment concentrating on the line that councils are misusing their powers. The overall effect in terms of the reputation of local government has regrettably been quite damaging.
We do not believe that most Local Authorities are abusing these powers, but there are enough examples which have been exposed to the media so far, coupled with all sorts of refuse bin spying, property extension snooping and anti-smoking snooping plans and policies, not to trust Town Hall bureaucrats, any more than Whitehall ones.
Parliament clearly intended that councils should use the new powers, and generally they are being used to respond to residents' complaints about fly tippers, rogue traders and those defrauding the council tax or housing benefit system. Time and again, these are the just the type of crimes that residents tell us that they want to see tackled. Without these powers, councils would not be able to provide the level of reassurance and protection local people demand and deserve.
Why has the investigation of such crimes been handed over to Local Councils ? It used to be the local Police who investigated local crimes.
When the Regulation of Investigatory Powers Act 2000 was originally scrutinised by Parliament, Local Councils were not on the list of public authorities which could use the Communications Traffic Data (subscriber details, itemised phone bills, email traffic logfiles etc.) powers.
The subsequent "function creep" via Order, rubberstamped by the Government majority, without any chance of amendment, came in afterwards - The Regulation of Investigatory Powers (Communications Data) Order 2003
This power is for the full Communications Traffic Data, and includes not only subscriber details i.e. name and address of landline telephone bill payers, or of registered mobile phones, but it also includes Location Based Services data for mobile phones, something which seems excessive for Local Authority Trading Standards or Environmental Health departments, who are supposedly the main intended users of such powers within a Local Council.
Local Authorities were included in the original RIPA Schedule 1 allowing them to conduct http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_5#pt2-pb2-l1g28 (following people in the street, watching and photographing private or business premises, but not entering them etc.) and Section 29 Authorisation of covert human intelligence sources i.e. undercover agents and informers.
The Act also requires that the powers should only be used when "necessary and proportionate to prevent or detect a criminal offence" and you will all know of the examples where councils have been criticised for using the powers in relation to issues that can be portrayed as trivial or not considered a crime by the public.We suspect that there are many more examples of such petty jobsworth snooping by Local Councils, which have not yet come to light.
Feel free to "blow the whistle" on any such examples which you know about, but first be prepared to take some elementary precautions to preserve your anonymity (until you are ready to relinquish it) - see our Hints and Tips for Whistleblowers
My purpose in writing is to ask that you satisfy yourself that the use of these powers is only being authorised after the most careful consideration at the appropriate senior political and managerial level. It would also be helpful if you could review existing permissions to ensure that their continuance meets the "necessary and proportionate" test. Perhaps you might consider reviewing these powers annually by an appropriate scrutiny committee or panel of your council which could invite evidence from the public. Whilst it is a matter for each council to determine for its area, our advice is that, save in the most unusual and extreme of circumstances, it is inappropriate to use these powers for trivial matters.
This is a tacit admission that the supposed independent safeguards of the RIPA Commissioners i.e. the Interception of Communications Commissioner and the Chief Surveillance Commissioner, are woefully inadequate when it comes to dealing with the hundreds of Local Authorities, rather than with the relatively few Police force and Intelligence Agencies etc. These Commissioners do not have the staff to inspect every Local Council, every year.
The leaders of the four political groups at the LGA and I have discussed this issue, in conjunction with the Local Authorities Co-ordinators of Regulatory Services (LACORS), and, specifically, we do not consider dog fouling or littering as matters which fall within the test of "necessary and proportionate".
Some common sense, at last !
The LGA and LACORS are working with the Government, police chiefs and the Chief Surveillance Commissioners to clarify some of the details of the legislation and make sure it is clear when and how surveillance should be used. By their nature, surveillance powers are never to be used lightly but it is important that councils don't lose the power to use them when appropriate. It is not right that councils are being tarred with accusations of using 'anti-terror' powers to investigate local crime when they are doing nothing of the sort. Equally it is important that they use these powers carefully and appropriately and we will be working with you to help enable that.
I hope you will be able to help in the manner I have suggested. Obviously in writing to you I am doing so with the support of all four group leaders here; we would be pleased to hear from you if you have any comments following your review or further suggestions on how as a sector we might ensure that councils' use of these new powers has general public support.
Sir Simon Milton
Chairman of the Local Government Association
There is no reason why the public should not directly contact Sir Simon and the Local Government Association with their views on such snooping.
Local Authorities are not allowed to ask for Email or Telephone or Postal intercepts of the content of communications, something which requires a Warrant or Certificate signed by a Secretary of State (Home Secretary, Foreign Secretary etc.). It is also a criminal offence to actually disclose the fact that such email or phone snooping has actually taken place.
The system for grabbing Communications Traffic data, is a lot easier bureaucratically, and is used far more often. However, there is nothing to prevent a Data Subject Access request under the data Protection Act 1998, regarding your own data, or a more general Freedom of Information Act 2000 request to your Local Council, to see if they have been snooping on you, or to determine, at least, how often, and for what sort of investigations, they have used their Communications Traffic Data powers
Directed Surveillance, involving following people about, stakeouts of premises or the use of informers or undercover agents lies somewhere in between Communications Traffic Data and Interception of Communications, in terms of bureaucratic form filling and supposed audit procedures.
As is usual, with the weak protections in the Human Rights Act, the Data Protection Act and the Freedom of Information Act, there are huge exemptions for "national security" (which Local Authorities should not be invoking), for "Public health" (which they might invoke) and for "the prevention and detection of crime" (which they might invoke, but which should really be a Police matter). You are unlikely, therefore, to be "tipped off" about a current ongoing criminal investigation, but there is no reason why you should not be told about previous (presumably fruitless) ones, involving the use or abuse of these RIPA powers.
There is no easy or effective mechanism of complaint or redress, for a member of the public who has been snooped on unnecessarily or excessively by a Local Authority.
There are no criminal penalties against such abuse by overzealous or politically motivated petty officials. There is a penalty of up to 2 years in prison for illegal interception of communications, but nothing for abuse of Communications Traffic Data or for Directed Surveillance.
If the Government are really listening to the public, rather than just "listening in" on them, they would correct this lack of an error correction mechanism and the lack of a criminal penalty deterrent against abuse by petty officials, in any review of the RIPA legislation.