Sunday, 7 August 2011

2109 Privacy and Surveillance

It is fitting that I am reading and writing about human rights and personal privacy on the 66th anniversary of the dropping of the Atomic bomb on Hiroshima and the Prime Minister of Japan makes a speech at the Peace ceremony, in the year of the accident at the Nuclear power plant caused by the earthquake and Tsunami. It has been a stop and start day taking time to also watch a fictional film, an exciting first quarter final in the 2011 20 20 cup and what has been described a five star Promenade Concert at the Albert Hall last night with the Simón Bolívar symphony Orchestra of Venezuela, part of that extraordinary youth movement to get the children especially the children of the poor to learn to play musical instruments and play in orchestras.

There have been two recent developments in what has become known as the Telephone Hacking Scandal and Murdochgate which caused me to research and write this piece. The first was the announcement that the police special crimes unit has commenced a third inquiry- Operation Tuleta - to investigate the scope of computer hacking at the present time.

The second development is that Newspaper companies fearful of being put out of business from a plague of civil damage suit under the law of Tort because of telephone hacking are getting their corporate lawyers to make statements about the legal position before and after R.I.P.A the Regulation of Investigatory Powers Act 2000. This in turn led me to read the Home Affairs Committee Report and that of the House of Lords on Surveillance and then to discover the 2008 Report of Liberty, the Human Rights organisation. Overlooked: Surveillance and Personal privacy in Modern Britain the outcome of four year’s work funded with the financial support of the Nuffield Foundation led by Gareth Crossman the Director of Policy.

Until reading this report much of my thinking was simplistic and governed by reading George Orwell’s 1984 in which he predicted the ability of the state to hear and see all that a population says and does although it was at the Henley senior managers Management Course, significantly in 1984, that I learned the full potential of micro digital media and communications technology- technology which transformed the position world wide as did 9/11 and then 7/7 here in the UK with the passing of the Terrorism Act 2006.

Before then governments, corporations, organisations and individuals undertook surveillance on each other primarily through observation although there was some interception of telephone and postal mail communications and through the use of listening devices, film and photography. I was introduced to the subject in the films of my childhood and youth and my thinking was then influence by an essay on Justice as fairness and another on the importance of Freedom To as well as Freedom From- see Philosophy Politics and Society edited by Peter Laslett and W C Runciman, Basil Blackwell Oxford.

The development of Internet communications, the mobile phone and micro technology led here in the UK to the 2000 Regulation of Investigatory Powers Act which enabled as well as regulated the power of public bodies to carry out surveillance and investigation on the general public on an extraordinary scale and depth which in earlier times would have led to rioting and revolution. The act even enabled public bodies to keep secret their actions from being revealed in subsequent court actions.

But to understand the framework in which R.I.P.A was created one must begin with article 8 of the 1953 European Convention of Human Rights which provided that “ Everyone has the right to respect for his private and family Life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the of the country, for the prevention of disorder or crime, for the protection of human health or morals, or for the protection of the rights and freedoms of others.”

R.I.P.A 2000 uses the same form of words to describe its starting point: National Security, the prevention and detection of serious crime and the economic well being of the United Kingdom.

This was because only two years earlier in 1998 that the European Convention became fully intermeshed with British Law through The Human Rights Act requiring courts to interpret the law in the context of the European Convention and on all public authorities to act with compatibility with Convention rights and give the right to take court proceedings if their rights under the convention have been breached or are going to be (presumably this to be may have given rise to what is known as the Super Injunction).

Also in 1998 the Data Protection Act implemented the 1995 European Data Protection Directive. This access allows individuals to access Data held on them by way of a subject access request and also sets out eight guiding principles by which all data should be handled.

R.I.P.A 2000 can be viewed as an attempt by government and public authorities to circumvent the 1998 Human Rights and Data Protection legislation by making open, covert and intrusive surveillance legal on a grand scale taking account of the development of micro digital information and communications technology. It is more likely the law of unintentional consequences.
The Home Secretary or Cabinet Secretary for Justice is required to issue warrants if requested by the Defence and security services and Revenue and Customs and the Police but only in some circumstances, whereas in other circumstances the power is given to a senior of member of the 50 classes of public body included in the legislation which cover all district local authorities, boroughs, and county council authorities, the Charity and the Gambling Commission.

The Home Secretary or Cabinet Secretary for Justice are required to issue a warrant for the interception of the communications technology and the post and for intrusive intelligence which includes the bugging of houses and vehicles

Senior officers are the named classes of authorities and public bodies can authorise Directed surveillance and covert human intelligence including the use of informers. They can also intercept or require intercept information about contemporary communications but not the content of an individual communication

In 2004 the Information Commissioner warned that we appeared to be sleep walking into a surveillance society with the proposed introduction of Identity cards and the establishment of the database of every child in the UK. I admit I was in favour of both. It is not unreasonable for every adult to be expected to carry with them a basic identity card although resistance in the media and within Parliament led to the plan being abandoned. However what I did not appreciate is that while it was expected that the security services, border control and the police would have access to the national identity database according to the Liberty report, it was proposed that 265 public bodies and 44000 private agencies were expected to granted access to the database.
From the viewpoint of child protection and ensuring the health and education I was in favour of a national database. However I was unaware how local authorities for example were making use of the legislation and it is not clear from the Liberty Report if the Child Index was completed and its use permitted with clear restrictions on access agreed and established.

What has influenced me now is that in 2006 the Information Commissioner wrote “Two years ago I warned we were in danger of sleepwalking into a surveillance society. Today I fear that we are in fact waking up to a surveillance society that is already around us.”

The Liberty Report explains how such a situation came about stating that because of the “War on Terror” the public in general appeared willing to compromise over “absolute” rights such as the prohibition of torture and a fair trial and as a consequence the right to respecting personal privacy was in jeopardy. My only quibble is with the use of “absolute” which suggests it is a right created independently of human beings and therefore cannot be changed or set aside as a consequence. There is nothing absolute about any human rights as these are dependent on agreement, consensus of the human being in any particular area at a particular time in the history of humanity.

The issue is stated clearly on the opening page: “As proponents of human rights, Liberty believes that every individual human life is so inherently precious that it is to be treated with dignity and respect and subject to the values of equal treatment and fairness. The very important that human beings form relationships, families and other associations, let alone complex modern societies, privacy becomes necessarily qualified. Without some proportionate and lawful intrusion, other vital concerns such as free speech, ministerial accountability, tax collection, child protection, let alone public safety would be impossible to pursue. Nonetheless, a society which does not pay sufficient regard to personal privacy is one where dignity, intimacy, and trust are fatally undermined. What is family life without a little bit of personal space around the home? How are fair trials possible without confidential legal advice or free elections without secret ballots? Equally, whilst free speech, law enforcement and public health are often seen in tension with personal privacy, think of anonymous sources, vulnerable witnesses and terrified patients who may be more likely to seek help if their confidences are safe and perceived to be so.”

What surprised and disappointed me is that in 2007 a You Gov commissioned poll is that only 57% thought that the UK had become a Surveillance Society and 48% that government and other public sector bodies had too much power. I believe that if the same poll was conducted to day the percentages would be significantly greater and if the press media is included as a separate category the percentage would be between 80% and 99%. The report commences with definitions and reminds that where as the ability to make legal surveillance has been defined in law through R.I.P.A 2000 privacy has not yet been similarly defined and any right to privacy has always been circumscribed by the requirements of governments and something designed as the public interest. According the introductory chapter it was an American Judge Cooley who suggested that privacy was the right to be left alone and then Geoffrey Robertson in 1993 who attempted a contemporary relevant “right to be able to live some part of your life behind a door marked do not disturb.”

The report then attempts to break this down to essential components such as Informational Privacy such as restrictions on the rights of others collect, use, track retain and disclose personal information but also balanced by the right to information covered by Freedom of Information. Then there is physical Privacy which in my judgement is tied in with Freedom from and Freedom to as is Informational Privacy. So the existing law protects us from physical assault of various kinds while at the same time now allows certain bodies to strip search, cavity search, drug test, alcohol test genetic test and biometric test.

There is also Spatial Privacy which should limit the right to intrude on persona space such as home domestic environments, one’s work place and one’s motor vehicle and even pubic space because the government had failed to establish that the use of street placed camera was not a violation of European Human Rights on the grounds that it only recorded what any passing member of the public could also have seen and I presume remembered although I also believe there are now restrictions on the taking of photographs if a property owner or individual objects.

Relationship Privacy is also complex covering the rights or limits on the ability to associate and have relationships with others but also the right and limits of being able to communicate and keep information of any association. Examples include the right to marry or limitations and the right to join a trade union. It is in this section that the report touches on the subject of jacking viz the right to have a relationship without any communication being intercepted or interfered with by a third party unless they have been given direct permission or has been given through law. So what is clear from all this is that decisions can only be taken or judged in the particular context of each instance?

What horrifies me most is that the extent to which the surveillance society developed so quickly, and developed under a Labour government often arose from the best of intentions such as the need to constantly bringing together all the information about children to prevent criminal acts against them led to the national children database and the creation of the health date base in part for similar reasons which some parents taking their child to different hospitals so that the frequency of “ accidents” is not more closely looked into or as in the case of my aunt the break down between medical, home nursing, social and hospital care contributed significantly to the premature and avoidable death of my aunt.

Much of the work of the Liberty Report was completed by the Information Commissioner who in 2006 published his report: A Report on the Surveillance Society which is also available to read/print on line. This report together with the Liberty report concentrates on the role of the state- government and its multifarious public bodies to undertake surveillance and keep data records including visual data, My immediate interest is the extent to which the print media has used the surveillance state and latest technology to covertly intrude and to encourage others whether for payment or not to inform. I also believe that he existence of such powers led the security services, the police and local authorities to engage private detectives to undertake their authorised covert intrusions and this in turn provided the printed media to also make use of the same expertise and technical abilities to sell repapers titillating the Sunday lunch and breakfast.

We presently know that one private detective had records which included the PIN numbers of several hundred mobile phones and the phone details covering 9000 numbers and 4000 identified individuals and that while the number of individual authorising the information gathering has increased from one to several in the News of the World, Operation Motorman established that several hundred journalists had authorised the collation of information by several private detection agencies. I will therefore be surprised if the Lord Leveson inquiries fail to establish that the scale on the intrusions and the extent of their illegality is not as great as that known to be undertaken by government and its agencies.

The report of the Information Commission for the year 2005/1006 showed that the law enforcement agencies issued over 23000 target surveillance warrants and that other public bodies just under 7000 that is 30000 in total. There were 435 intrusive warrants successful applied for an issued with none rejected. In the same year law enforcement agencies recruited 4559 undercover agents to establish a relationship with suspected criminal and local authorities 437. There were 2310 authorisations for property interference by law enforcement with only 4 applications being quashed. By 2006 there were 4.2 million CCTV cameras in use one for every 14 people in the UK. The installation of number plate detection camera enables the progress of vehicles to be tracked without the attachment of an individual tracking device.

I was in the midst writing to the Leader of he Labour Party a dear Ed letter following on those to Dear Dave and Dear Boris when I realised I needed to understand the present law and the Liberty Report is an excellent source of info up to 2008. In addition to 1998 Human Rights Act which came into force in 2000 and the Data protection Act 1998 there is the earlier (1997) Protection of Harassment Act 1997 and which covers harassment by the media including doorstopping which may also amount to trespass. The positive aspect of RIPA 2000 is that in declared as criminal offences the unauthorised interception of postal including electronic and telephonic communication. There Protection Privacy regulations are also important along with the Ofcom Broadcasting Code because of coverage of public interest exclusions. The Press Complaints Commission was intended to provide a mechanism for the investigation and redress of complaints, The National Union of Journalists also had a code of practice which allows for the clandestine gathering of information including intrusions into public life, into grief or shock as possibly justified when in the public interest, although public interest is not defined. The report also draws attention that privacy has been protest by Tort Law i.e. case law that legislative or regulatory means. Before the Human Rights Act a case law had ruled that there was no right to privacy and hence no right to legal action in breach of privacy. The position was subsequently confirmed in the Court of Appeal years after this case which concluded that it was for Parliament to consider how to protect an individual’s right to privacy. Counterbalancing the lack of protect through Tort the Courts did allow some protection on the basis of Breach of Confidence. Arising from the Douglas Case the Court of Appeal stated that the law should protect those who have suffered an unwarranted intrusion into their private lives and not only those who have suffered an abuse of trust. The concept of privacy was for the first time distinguished as a legal concept capable of affording protection in respect of an individual’s inherent autonomy. The report then discusses the significance of the Naomi Campbell case which also went to the Court of Appeal where she won a judgement by three voices in her favour with two against. What interest me is the reference that the court found someone who is a self publicist retains certain rights to privacy.

I was also interested by the discussion of The Public Interest Justification. One distinction is between someone who does not exercise any official functions and someone who does. This is relevant in that both former Assistant Police Commissioners Andy Haymen and the recently resigned Assistant Police Commissioner were the subject of press articles about their private lives which would regarded as relevant on the basis of this distinction whereas the sexual life of footballer or film star becomes questionable unless they established themselves as a role model campaigning against racism and drug use for example. The distinction was further confirmed in another case when it was concluded that it is necessary to draw a distinction between the vital role of the press as public watch dog and its publishing of news about figures that cannot legitimately be described as public figures.

I also noted the ongoing defence that something which in one circumstance will be considered a breach of confidence is acceptable because it is already in the pubic domain; I assume that excluded is the situation where an individual has been the cause of the information entering the public domain

The rest of the report concentrates on conclusions and recommendation which in the light of recent development will provide a useful basis for evaluating the evidence and conclusions presented to and reach by the Leveson Inquiries.

While I have looked at considered the Liberty report over a couple of days, I have decided to do no more than headline through the Commissioner Information’s report and the Commons and Lords Reports on the subject of Surveillance, its present and likely development, the present legal position and need for change, the information will remain readily available for future reference over the next five years of prosecutions, inquiries, reports, political and media debates.

What I have concluded is that since RIPA 2000 the law has become clearer but the power given to the State had increased beyond a level which ought to be considered unacceptable. Fortuitously it is the behaviour of Journalists and their managers rather than the behaviour of governments and government authorised agencies which is likely to push the pendulum back in limiting intrusive and convert actions and affording further protection to individuals especially if those accountable find themselves responsible for meeting substantial financial penalties.
During the writing I listened to a collection of 1960’s popular records featured on Radio Caroline Vol 1 The Animals- The House of the Rising Sun; Johnny Kidd and the Pirates, Shakin all over; Moody Blues-Go now; The Turltes-Elenore; Donovan- Catch the Wind; Keith West Excepts from a teenage Opera; Amen Corner If Paradise is half a nice; Bobby Goldsboro- Honey; The Beach Boys- Fun Fun Fun; Jeff Beck Hi Ho silver lining; Canned Heat-On the road again; Peter Starsdedt- Where do you go to my lovely; The Hollies- - He aint Heavy; Small Faces Itchycoo Park; The Flower Pot Men Let’s Go to San Francisco; PP Arnold- The first cut is the deepest; Status Quo- Pictures of Matchstick Men; The Searches-Sweet for my sweet.

I so enjoyed that I played again before moving to Vol 2. Chris Farlow- Out of Time; The Shadows- Wonderful Land; The Tremeloes- Silence is Golden; Edie Cochran- Three Steps to Heaven; The Hollies- I’m alive; Herman’s Hermits- I’m into something Good; The Searches- Don’t throw your love away; Status Quo-Ice in the Sun; The Overlanders- Michelle; Gerry and the Pace Makers- I like it; Tommy James and the Shondells -- Mony Mony; The Beach Boys- Pretty Flamingo; The Animals- We’ve gotta get out of this place; The Seekers - I’ll never find another you; Sandie Shaw- Long Live Love; The Foundations-Baby now that I have found you; Billy J Krammer and the Dakotas Bad to me.

Vol 3 Del Shannon- Runaway; Sandie Shaw- Always something there to remind me; The Swinging Blue Jeans-Hippy Hippy Shake; Herman’s Hermits- There’s a kind of hush; Gerry and the Pacemakers- Ferry Cross the Mersey; Freddie and the Dreamers-I’m telling you; The Archies- Sugar Sugar; Bob Lind- Elusive Butterfly; The Turtles- Happy Together; Peter and Gordon- A World without Love; Carole King-It might well rain until September; Jan and Dean-Surf City; Simon Dupree and the Big Sound- Kites; Bobby Vee- Rubber Ball; Cliff Bennett and the Rebel Rousers - Got to get you into my life; Manfred Mann 5.3.2.1; Canned Heat- Going up the country and The Nice-America.

I also watched and listened to Mahler’s second symphony, The Resurrection played by the Simón Bolíver Symphony Orchestra of Venezuela conducted by Gustavo Dudamel

Their first appearance at the Proms in 2007 set the Royal Albert Hall alight. Back then, they were called the Simón Bolívar Youth Orchestra of Venezuela and famously are a product of the country's El Sistema programme which offers every child a free musical education. Led by their dynamic conductor Gustavo Dudamel, tonight they perform Mahler's second Symphony, Resurrection - a work for vast forces including offstage brass, two solo singers, and a large choir as well as the orchestra.

Mahler takes listeners on a spectacular journey through the entire gamut of emotions and questions whether there is life after death. The symphony begins with a huge funeral march and across the work makes a progression from darkness to light - death to everlasting life.

Digital viewers were able via the red-button to choose to select Maestrocam, a continuous shot of conductor Gustavo Dudamel plus an expert commentary about the music as it is being played.

I also watched Jools Holland presenting a collection of Amy Winehouse's performances on Later, the Hootenanny and at the Mercury Prize between 2003 and 2007. Winehouse made her TV debut on Later in 2003 with songs from her debut album Frank. Like Jools, she loved classic jazz and blues singers like Dinah Washington and Sarah Vaughan, and the two Londoners hit it off.
Amy returned to play with Jools's Orchestra at that year's Hootenanny, to Later in 2006 for the launch of Back to Black and to that year's Hootenanny to perform Toots's Monkey Man and duet with Paul Weller.

Back to Black was nominated for the 2007 Mercury Prize and Winehouse performed a heartrending version of Love's Just a Losing Game accompanied only by her guitarist - a fitting end to this celebration of the mercurial, brilliant and troubled singer in her prime.

I missed out recording the BBC sessions but was able to watch and listen on the BBC ME player

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