The Chief Surveillance Commissioner, the Rt. Hon. Sir Christopher Rose writes:
Chief Surveillance Commissioner
2.4 I was invited to oversee the removal of 'covert' cameras around specific areas of Birmingham. I have confirmed in writing that no cameras installed specifically for covert use were capable of use before the decision to remove them. All camera equipment has been removed and, by the time this report is published, I will have confirmed that all related 'street furniture' has been removed.
2.5 Towards the end of the year, significant media reporting relating to the activity of an undercover officer authorised to conduct activity against domestic extremism resulted in a number of investigations by Her Majesty's Chief Inspector of Constabulary, SOCA and the IPCC. At the time of this report's preparation these investigations continue. I am monitoring all investigations to ensure consistent and accurate interpretation of legislation. I am reassured by the involvement and publication of the terms of reference of an objective External Reference Group in relation to HMCIC's investigation.
Will any of the senior Police officers and bureaucrats and politicians, who were responsible for the various undercover police spies and agent provocateurs
who have been caught infiltrating the various "environmental" protest groups ever be named and shamed or punished ?
What are their links to the state and private sector powerful vested interests ?
3.4 I explained in paragraphs 3.6 to 3.8 of my last report that my Commissioners from time to time publish guidance; the latest was published in September 2010. If I continue to find that this document is not readily available to those who need it, or is not promoted by national associations, I may make it publicly available on my website. I have resisted this temptation so far because:
3.4.1 my small office does not have the capacity to answer the inevitable influx of requests for clarification that this would invite;
Surveillance is big business, affecting millions of people in the UK.
The taxpaying public has a right to demand the publication of this document and for clarifications to be answered promptly and fully.
3.4.2 law enforcement agencies in particular are concerned that tactics might be unnecessarily revealed;
3.4.3 it is not a comprehensive document which covers every eventuality and it might be misconstrued or misused; and
That sounds like bureaucratic backside covering.
Publish the guidance anyway.
How can it be misconstrued and misused any more than the Acts of Parliament
and the Codes of Practice upon which it is based ?
If these are not crystal clear then they must be amended.
3.4.4 it is not my remit to provide free legal advice, though I proffer guidance to public authorities which I have a responsibility to review, in order to raise standards and promote consistency.
Public Authorities should make this guidance available to everybody. Why should it be kept secret ?
Time for a Freedom of Information Act request to , say, the Metropolitan Police Service , for a copy of this Guidance.
Why are the RIPA Commissioners still excluded from the list of Public Bodies, even though they absolutely meet and exceed the conditions for such a listing under the FOIA section Schedule 1 ?
3.8 The procedural changes proposed in the Protection of Freedoms Bill involving magistrates in the authorisation process for local authorities and a higher threshold for authorised covert activity will not reduce the frequency or nature of my inspections even if the number of authorisations is reduced. My inspections will continue to focus on the training, knowledge and competence of local authority officials involved in the identification of activity which may be covert and which, if it is, should be authorised under the legislation in a clear and principled way.
So there is not going to be any reduction in Surveillance by public authorities as a result of the proposed Protection of Freedoms Bill ?
3.10 I have commented in previous reports that there appears to be an over-reliance on the capacity of the OSC to examine authorisations. I remain concerned that my limited capacity is misappreciated. Public authorities, particularly law enforcement agencies, should not be lulled into a false sense of confidence if at trial lawyers do not scrutinise relevant documents. Lack of challenge does not imply compliant authorisation. I mentioned last year (paragraph 5.19) that there is an expectation of authorisation. I add this year that authorisations should be of a quality to withstand examination at trial however rarely such scrutiny may occur.
Is this an oblique, soviet style hint, that there are some illegal cases involving authorisations which will not stand up to proper scrutiny ?
3.11 I have considered carefully, but resisted, a few requests to increase the duration between inspections. My inspection capability is limited. The sample of documents which can be examined is small and the inspection can only be regarded as a 'snapshot in time'; it is not an indicator of trends. Often key personnel change in the period between inspections. I recognise the inconvenience of an inspection (especially for law enforcement agencies) but less frequent inspections would not provide the effective oversight which Parliament requires of me.
Which snooping organisations are moaning about the current, totally inadequate level of inspections ?
"the effective oversight which Parliament requires of me."
is a misnomer - it does not actually represent properly transparent and effective oversight, which the public has a right to demand.
3.12 I have still not been given the power to inspect local authorities in Northern Ireland. I am concerned that these authorities have never been inspected.
That is a scandal which should have been rectified years ago.
3.14 I invited representation from the Association of Chief Police Officers Automated Number Plate Reading Working Group to one of the meetings in order better to understand its concerns regarding specific guidance on that topic. It is my intention to provide further guidance, if necessary, before this report is published.
Automated Number Plate Reading (ANPR) is a whole area of mass surveillance which the current and previous Surveillance Commissioner have ineffectively criticised.
No doubt the Chief Surveillance Commissioner will not actually investigate any actual or potential abuses of ANPR, only issue secret Guidance to the snoopers as per paragraph 3.4 above. He may even abrogate this responsibility and leave it to the new RIPA style Surveillance Camera Commissioner, proposed in the Protection of Freedoms Bill, to deal with.
3.18 I have not had the capacity to improve my website. The Cabinet Office has recently decided that all government related websites, including those of Non Departmental Public Bodies such as mine, will migrate to a corporate process. It is essential that I remain independent and be seen to be independent.
At least the OSC actually has a website, unlike the other two RIPA Commissioners.
Neither the Chief Surveillance Commissioner nor the other two RIPA Commissioners
will ever be "seen to be independent" whilst they reports only to Ministers rather than to Parliament and the public directly. and whilst they weasel out of compliance with the Freedom of Information Act.
3.25 In order to achieve a reduced budget for the financial year 2011 - 2012 I have reluctantly reduced my capacity by one Inspector and the Secretary post and downgraded a further post. My capacity has always been limited and I wrote to the Home Secretary to explain the impact of reducing my budget by £140K. I recognise the severity of the country's financial situation but a reduction of nine percent has serious operational repercussions in a tiny organisation. I am only able to work within this tight limit by reducing inspectorate and secretarial staff.
How about the Home Office reducing the amount of Surveillance it funds by 10 per cent ?
4.2 Statistics for directed surveillance and the use of CHIS have been supplied by all law enforcement agencies. I am pleased to report that all other public authorities have responded to my request for this statistical information, so this year's figures are again based on a one hundred per cent return.
4.3 It is important that these statistics are not misconstrued. Reports relating to local authority use of covert surveillance have been misleading and often inaccurate. I have identified no systemic attempts to misuse legislation. There are, occasionally and inevitably, misjudgments but these are rarely the result of abuse of power.
Misjudgments about proportionality etc. in the exercise of such powerful and dangerous legislation are an abuse of power, the only question is whether such inevitable human lapses within an inhuman system of surveillance bureaucracy, should be punished or not.
Given the secrecy which surrounds such surveillance, there is no effective system of public apology and financial compensation for the victims of such misjudgments - the Courts are only available to the rich and are useless for the protection of privacy.
The Surveillance Commissioner should "name and shame" the culprits in this Report, which is his only sanction, pathetically weak though that is.
Section 49 - encryption
4.11 During the period to which this report relates, NTAC granted 26 approvals from 30 applications. Permission was not sought in eight cases after NTAC approval. From the remainder, 17 had permission granted by a Circuit Judge, of which 12 have so far been served. Four were complied with and two were not; the remainder were still being processed. Five people were charged with an offence, of whom it was decided not to prosecute two. So far there has been one conviction with other cases still to be decided.
4.12 The conviction related to the possession of indecent images of children. Other offences include: domestic extremism, insider dealing, fraud, evasion of excise duty, drug trafficking and drug possession with intent to supply.
Not the complete absence of the words "terrorism" or "national security".
NTAC = National technical Assistance Centre, which has lurked somewhere under the GCHQ empire since 2006.
4.13 These statistics are provided by NTAC which is able to be accurate regarding the number of approvals it has granted. But it is reliant on those processing notices to keep it informed regarding progress. It appears that there has been delay in serving some notices after approval has been granted (hence the difference between the number approved and the number served). Notices, once approved, should be served without delay.
Delays by the legalistic surveillance bureaucracy ? Who could have imagined that, apart from, say Franz Kafka.
5.4 At the time of writing, the Protection of Freedoms Bill is at the Committee stage.
it is not apparent why local authorities should be treated differently from other public authorities
The higher threshold in the proposed legislation will reduce the number of cases in which local authorities have the protection of RIPA when conducting covert surveillance; it will not prevent the use of those tactics in cases where the threshold is not reached but where it may be necessary and proportionate to obtain evidence covertly and there will be no RIPA audit trail. Part I of RIPA makes unauthorised interception unlawful. In contrast, Part II makes authorised surveillance lawful but does not make unauthorised surveillance unlawful.
Why should the minority users of RIPA surveillance powers i.e. Local Authorities have to be authorised by Magistrates, when the vast bulk of request by the Police and Intelligence Agencies and other Government Departments e.g. DWP, HMRC etc. will
continue to be self authorised ? They should all have independent judicial warrant oversight of every application, before (or in emergencies, immediately after) the privacy intrusion happens, not just a RIPA Commissioner audit of a sample of requests every year or two.
5.11 We have evidence that some public authorities are purchasing highly intrusive technical capability without properly considering the legislative implications of its use. For instance, a single digital camera is capable of coverage equivalent to or greater than a larger number of analogue cameras; but the reduction in the number of cameras does not reduce privacy concerns. We have seen noise monitoring equipment that is capable of 'permanent' monitoring even though it has not been activated to store a recording in an easily interpreted form and I am not convinced that data is irretrievable. For this reason, my Commissioners have provided guidance that authorising officers should avoid accepting loose terminology and understand the capability of the equipment. Corporately, public authorities should ensure that equipment which is more capable than can be justified should not easily be procured.
Vaguely hoping that the purchasing of intrusive technology will somehow not happen is foolish - e.g. digital cameras are cheaper than analogue ones these days.
There should be detailed consideration of the technological capabilities being used or potentially abused, by those who supposedly, independently, scrutinise the proportionality of each application for covert surveillance.
The Rt. Hon. Sir Christopher Rose makes this interesting legal point regarding Covert Human Intelligence Sources (CHIS):
Availability of powers
5.15 Many public authorities which are not law enforcement agencies prefer not to use CHIS. Their reasoning usually reflects a laudable desire to use less intrusive methods or a belief that they are ill-prepared to manage them compliantly. The desire is good practice and the belief is often accurate. However, the ease with which statutory criteria are met is often misjudged; a person, irrespective of motive, may be a CHIS if he uses a personal or other relationship to pass information to a public authority in a manner that is covert in relation to the person to whom the information refers. This may not be of significant concern if the reporting is occasional or when the information attracts no action or when it has been volunteered. It should be a concern if the individual reports information on which action is likely to be taken or if the information is likely to be retained for later analysis. Public authorities may not ignore this because they do not wish to use CHIS. In many cases, public authorities wish to retain the power but make no effort to prepare properly for the eventuality. In other cases, the public authority has decided that it no longer requires the capability, without recognising that it is dealing with persons who should be authorised as a CHIS. I have no power to insist on proper training or retention of powers. I can only draw the risk to the attention of the relevant authority. But I take this opportunity to remind public authorities that the threshold set by Parliament is low and that there is significant risk in reliance on a person within the statutory definition of a CHIS who is not authorised.
- Presumably this also applies to Whistleblower websites and Confidential Tip Off phone lines for reporting of terrorism or crime or benefit fraud etc. e.g. see this previous Spy Blog article: Web censorship - anonymity / security issues with reporting.direct.gov.uk and the Counter Terrorism Internet Referral Unit - UPDATED 01May11
- Does telephoning 999 to call the Police to an immediate crime in progress fall within the "low"" Covert Human Intelligence Source threshold ?
- Will the Surveillance Commissioners actually inspect any of the back office systems behind the public facing Websites or Phone Lines, to ensure that they are properly protecting the anonymity and security of whistleblowers, tipsters, "snouts" or other CHIS ?