“Examples of poor or unnecessary use of section 44 [Terrorism Act 2000] abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist…In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful…A section 44 stop, without suspicion, is an invasion of the stopped person’s freedom of movement…It is totally wrong for any person to be stopped in order to produce a racial balance in the statistics”.

Not the words of a crusading civil libertarian but the sober judgement of Lord Carlile, the government’s official anti-terror law watchdog, in his annual report. Under section 44, police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year out of a total of 117,278 people stopped and searched, 73,967 were white, 15,218 were blacks and 20,768 were Asians. Lord Carlile said that he can understand the concerns of the police that they should be free from allegations of prejudice, but it is an invasion of the civil liberties of the person who has been stopped, simply to “balance” the statistics. According to the ‘Guardian’, he later went on to say that “if, for example, 50 blonde women are stopped who fall nowhere near any intelligence-led terrorism profile, it’s a gross invasion of the civil liberties of those 50 blonde women. The police are perfectly entitled to stop people who fall within a terrorism profile even if it creates a racial imbalance, as long as it is not racist”. He could here be accused of validating the concept that it’s OK to stop a non-white, but not OK to stop a blond woman, even though the vast majority of Asians and black people are as far from any known terrorism as he perceives blond women to be.

Nearly 90 per cent of the searches were carried out by the Metropolitan Police, whose officers use section 44 to carry out stop and search between 8,000 and 10,000 times a month. Lord Carlile admits a sense of frustration that the Metropolitan Police still do not limit their section 44 authorisations to specific boroughs, rather than to the entire force area. He can see no justification for the whole of the Greater London area being under permanent special search powers. None of the many thousands of searches has ever resulted in conviction of a terrorism offence, and he says that its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing.

Lord Carlile calls for greatly reduced use of section 44 powers and repeats what he calls his “mantra”, that terrorism related powers should be used only for terrorism-related purposes. Otherwise their credibility is severely damaged. “The use of section 44 has attracted particular criticism as having a negative effect on good community relations. Its purpose and deployment are poorly understood”.

The full text of Lord Carlile’s report can be found at:-
http://security.homeoffice.gov.uk/news-publications/publication-search/general/Lord-Carlile-report-2009/Lord-Carlile-report.pdf?view=Binary

This column has banged on at some length in recent times about the dangers to civil liberty and privacy caused by unlimited surveillance, and now the EU is weighing in with the same concerns. “Europeans must have the right to control how their personal information is used” said Viviane Reding, the EU’s Commissioner for Information Society and Media, announcing this week several areas in which the Commission is ready to act to maintain this right as technology trends make it easier to use, and misuse, personal information.

The Commissioner said that European privacy rules are crystal clear: a person’s information can only be used with their prior consent. Radio Frequency IDentification (RFID), the smart chips integrated in products such as electronic bus passes to send radio signals, would only realise their economic potential if they are used by the consumer and not on the consumer. “No European should carry a chip in one of their possessions without being informed precisely what they are used for, with the choice to remove or switch it off at any time.” The Commissioner also called on social networking companies to reinforce privacy protection online, particularly the profiles of minors, which must be private by default and unavailable to internet search engines. Mrs Reding asks “do we not cross the border of the acceptable when, for example, the pictures of the Winnenden school shooting victims in Germany are used by commercial publications just to increase sales?” The European Commission has already called on social networking sites to deal with minors’ profiles carefully, by means of self-regulation. The Commissioner warned that the EU would take action where Member States fail to implement EU rules ensuring privacy and the need for a person’s consent before processing his or her personal data.

Regarding behavioural advertisement systems that monitor internet users’ web browsing to better target them with advertisements, “we cannot…have all our exchanges monitored, surveyed and stored in exchange for a promise of ‘more relevant’ advertising”. Earlier this week the European Commission launched proceedings against the UK concerning this online advertising technology developed by UK based Phorm, tested by BT and cleared by the authorities. The current UK law allows internet traffic to be intercepted if the company doing the intercepting believes that it has consent. “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications”. The Home Office said that it would respond to these proceedings in due course.

In August 2004 the Information Commissioner Richard Thomas warned against the possibility of the UK sleepwalking into what he referred to as a “surveillance society” in which the tools of mass surveillance have become ubiquitous and individual privacy a thing of the past. In particular, he expressed concern about a raft of new Government proposals, including the establishment of a national identity card scheme, and the creation of a database containing the name and address of every child under the age of 18.

The House of Lords Constitution Committee’s report ‘Surveillance: Citizens and the State,’ after detailing specific concerns about the current situation, had this opinion in mind when making over 40 recommendations. Some relate to the Information Commission itself. There should be an expansion of its remit and more consultation by the Government. Before introducing any new surveillance measure, the Government should endeavour to establish its likely effect on public trust and the consequences for public compliance in conjunction with the Information Commissioner’s Office. The committee recommend that DNA profiles should only be retained on the National DNA Database (NDNAD) where it can be shown that such retention is justified or deserved. “We expect the Government to comply fully, and as soon as possible, with the judgment of the European Court of Human Rights in the case of S. and Marper v. the United Kingdom, and to ensure that the DNA profiles of people arrested for, or charged with, a recordable offence but not subsequently convicted are not retained on the NDNAD for an unlimited period of time.”

The Government are enjoined to propose a statutory regime for the use of CCTV by both the public and private sectors, introduce mandatory encryption of personal data and undertake post-legislative scrutiny of key statutes involving surveillance and data processing powers, including those passed more than three years ago. There are several recommendations stressing the role of individuals, concluding with “We believe that the Government should involve non-governmental organisations in the development and implementation of surveillance and data processing policies with significant implications for the citizen.”

Britain does not have a written constitution, which make the twin pillars of executive restraint and individual freedom all the more important for the rule of law. Unbridled surveillance disturbs both pillars and the members of the Constitutional Committee, with their impeccable credentials, have done great service in warning of the risks undermining the fundamental relationship between the state and citizens. Very effectively they have nailed the canard that if you have nothing to hide you have nothing to fear.

The report is worth a read and you can see the full text at:
http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/1802.htm

“We regard privacy and the application of executive and legislative restraint to the use of surveillance and data collection powers as necessary conditions for the exercise of individual freedom and liberty.” Not the words of a committed civil liberties’ campaigner but the considered opinion of the House of Lords Constitution Committee, charged with an inquiry into “the impact that government surveillance and data collection have upon the privacy of citizens and their relationship with the State.”

In its report ‘Surveillance: Citizens and the State’, published last week, the cross party committee recognise that mass surveillance has the potential to erode privacy, which is an essential pre-requisite to the exercise of individual freedom. So to what extent should surveillance and data collection be permissible within the current constitutional framework of the UK?

Britain leads the world in the use of CCTV. Surveillance technology is used to achieve specific ends, such as maintaining public order, anticipating and meeting social needs, and responding to market trends and consumer demand. National security, public safety, the prevention and detection of crime, and the control of borders lead to the use of a wide range of surveillance techniques and the collection and analysis of large quantities of personal data. As a result, surveillance has become an inescapable part of life. Every time you make a telephone call, send an email, browse the internet, walk down the local high street, your actions may be monitored and recorded.

The committee recognises that there are advantages. Protecting the public is a duty of government. The potential of being able to obtain public services from central or local government quickly, reliably, and efficiently is some justification for “electronic government”. But there are disadvantages. “Privacy, trust in the state, and the security of our personal information [are] all now at risk owing to the growth in surveillance, and there [is] a pressing need to take the potential pitfalls of surveillance seriously.” The report is particularly critical of the current arrangements that allow the state to store and retain indefinitely the DNA data of anyone questioned by the police. The committee are disturbed that there are few restrictions and no clear legal limit to the use of public area CCTV cameras and the data collected by them.

The report quotes police evidence that “citizens are very happy to support the
development of surveillance and of data acquisition mechanisms that achieve a
balance between privacy and safety.” But where does that balance lie? The report is concerned that the long standing traditions of privacy and individual freedom, which are vital for democracy, are being undermined, an echo of President Obama’s words: “As for our common defense, we reject as false the choice between our safety and our ideals.”