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Surveillance is ever-present

Technology is helping to create a surveillance society, says the Information Commissioner; we investigate how surveillance is ever present, and how it is creating a divided society.14 Nov 2006

A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.

Hello and welcome to OUT-LAW Radio, the weekly podcast that keeps you up-to-date on all the twists and turns in the world of technology law.

Every week we bring you the latest news and in-depth features that help you to make sense of the ever-changing laws that govern technology today.

My name is Matthew Magee, and coming up on this week's show we hear about how we constant surveillance is creating a divided society, and we talk to the man trying to use the Freedom of Information Act to get information on the Freedom of Information Act.

But first, the news.

  • UK banks agree to data sharing; and
  • Russian hacking case can be heard in England, says Judge

UK banks have agreed to Government data-sharing proposals on suspected financial criminals, but say they want the public sector to share its data too. The banks also express doubts about whether the plan would actually help to catch criminals.

The British Bankers' Association outlines its views on the new plans in a response to a recent Home Office consultation paper on organised crime. It was critical of the Government's handling of financial crime, and said that new measures would not even actually increase convictions. "It is clearly disappointing that the proposals in themselves, even if implemented fully, will not necessarily lead to increased police and law enforcement investigations and prosecutions," said the BBA.

A case claiming that two Russian companies hacked into a London computer system can be heard in English Courts, a Judge has ruled. Rusal, the third biggest aluminium producer in the World which owns the two Russian companies involved, had argued that English Courts had no jurisdiction.

"Ashton's computer server was in London," wrote Jonathan Hirst QC, sitting as a Deputy Judge of the High Court, in his ruling. That is where the confidential and privileged information was stored. "The attack emanated from Russia but it was directed at the server in London and that is where the hacking occurred", he wrote.

That was this week's OUT-LAW News.

Two years ago information commissioner Richard Thomas warned that Britons were sleepwalking into a surveillance society. Today he will tell a conference of international privacy commissioners that we have now woken up into that surveillance society.

He ordered a report into the current and future surveillance of UK citizens and the findings are startling. Not only is the Government collecting increasing amounts of information, it plans to share more and more of it with the private sector. Half the UK population has a Nectar loyalty card. From car number plate recognition to computerised doctors' notes, we are tracked like never before.

Assistant information commissioner Jonathan Bamford puts the situation in the UK into perspective.

"We are the World capital in CCTV surveillance. We have lots of initiatives on modernising Government. We have very powerful retailers who hold lots of information about us. All sorts of information there which all shows things about us and what we get up to. It is important that we have a property base about how we regulate that so we make sure that the public have confidence on what goes on and are not mistrustful about it."

Collecting and sharing information is rife, says Bamford.

"It is a big business, the business of data aggregation in the private sector, bringing together information on people's habits, activities to sell commercially, to make available commercially.  With the public sector, we see an increase in pressure for information sharing, the Government has its transformational Government's agenda, the idea that if only public authorities shared more information they would do better things for the public. It would be what the public want. But to a certain extent, that might well be right, but I think we have to be clear on what the boundaries are in terms of data protection rules and in terms of public acceptability."

The potential problems are serious, the implications unsettling.

"I don't think we would all want to live in a situation where every aspect of our private lives is available shall we say to the Police. The fact that technology allows so much to happen now shouldn't be the reason for doing it. You know as our medical records are computerised, if ever there was a proposal which there isn't thank goodness, to make all our medical records available for the Police service or something like that, we would probably think that was a step too far."

In fact, that kind of proposal hit the headlines just today. Fears have been expressed that the NHS's new IT system could pass medical records on to the police. Also in today's news was the story that that one of the men who helped invent the UK'S DNA database believes it has expanded too far and should not include the records of innocent people. And two citizens' rights groups in the US launched a campaign for web retailers to be investigated over the extent of their tracking of consumers and how much people know about it.

Data protection laws are there to protect us, but the Surveillance Society Report details how the problems of surveillance go far beyond immediate political and economic concerns. The problem is spreading, and the social cost could be huge.

"I think that at its highest level, if you are talking about building up profiles on individuals, be it in the public or the private sector, you are going to find there is an element of social sorting going on where you actually see that some people become favoured and others are treated with suspicion. You are going to actually find there is a sort of digital divide there between people. So you are going to actually get to the situation where the way people live their lives and starts to influence how people treat them in the future, you never have a blank slate."

The report outlines how new classes are created, how your postcode or your family's criminal record will soon affect how companies treat you, how long you wait on hold and even match you with a call centre worker from a similar background. It will even change the price of goods and services you receive. Add this to government surveillance and you have a truly dystopian vision of the immediate future.

"You could be the best behaved child in the class, but if the profile that has been generated of you based on your relatives, things like that, show you as being a risk of being disruptive or being one of those 20% of people who commit 80% of the crime in later life, you are going to be treated in a particular way by whoever comes into contact with you however you are, and there is worries there for the future about social stigmatisation, those sorts of aspects, of social exclusion, and society of haves and have nots".

Faced with this prospect, you would imagine the public would be up in arms. In fact, says Bamford, they barely care.

"You would expect me to say now we are inundated with people complaining about CCTV surveillance or what happens to those images. That is not the case. What we find is it is much more the minutiae of people's lives that are a concern to them.  So the fact that information is brought together by organisations from different contexts and used to make decisions on whether to give people goods or services or not. Often the public I don't think value their information quite so much and I think that is starting to change a little bit. People are waking up to the fact that actually, their details are a valuable commodity and actually their lives will be seriously messed up if those fall into the wrong hands and are used in a way that they wouldn't want."

The report's vision is bleak, and Bamford says that it will take more than just data protection officials to put the brakes on a socially divisive surveillance society. The stakes, he says, are high.

"I think we have to be very very careful about this.  As I say, we all will end up living lives which remove us from having personal autonomy and deciding how we want to live our lives, and actually have a life that is planned out for us by people who think they know what their expectations of how we behave will be, and I think that that is something which we need to be very very careful about."

The Department of Constitutional Affairs is in charge of the Freedom of Information Act, but one campaigner has had difficulty extracting information from it.

The DCA commissioned a report by Frontier Economics which analysed the cost of processing FOI requests. Based on that report, the Government recommended controversial changes which could put many FOI requests beyond the cost ceiling which allows Government to refuse them.

Maurice Frankel of the campaign for Freedom of Information asked for the data on which the report was based, but that request was refused.

"We asked the DCA for the results of the one week survey they carried out earlier at the beginning of the year. This is the date that was given to Frontier Economics and forms a major part of the data that they based their assessments on, and we have been refused that data on the basis that it relates to the formulation of Government policy and disclosure would not be in the public interest. We now challenge that. You know the whole debate becomes even more difficult if the Government is not prepared to release the factual survey which forms the basis of the Frontier Economics report."

Frankel says that the DCA may have broken its own guidance.

"What we have said is that we think the Government has disregarded, or the DCA has disregarded its own advice to Whitehall on the application of its exemption.  Because the internal guidance makes it clear that there has to be very clear grounds for refusing factual information and it says that normally it will only be justified to refuse it when the factual information is so closely intertwined with the advice and discussion that they can't be separated or the factual information itself reveals what the option or what the discussion is. Which can't be the case here, because this is a self-contained survey. And so you know it is very unfortunate that the exercise has not been as transparent as it should have been and that the DCA has refused FOI requests for the data itself."

A spokeswoman for the DCA told OUT-LAW that the decision was under internal review, and that the request had been refused because the decision on FOI charging had not been made yet, so the data was still being used in its deliberations.

That's all we have time for this week, thanks for listening.

Why not get in touch with OUT-LAW Radio? Do you have a legal problem you would like us to discuss on air? Do you know of a technology law story? We'd love to hear from you on

Make sure you tune in next week; for now, goodbye.