Mass surveillance in the United Kingdom

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Camera next to the Palace of Westminster's Elizabeth Tower, London (2014).
Main article: Mass surveillance

The practice of electronic surveillance by the United Kingdom grew from wartime signal intelligence and pioneering code breaking. In the post-war period, the Government Communications Headquarters (GCHQ) was formed and participated in programmes such as the Five Eyes collaboration of English-speaking nations. This focused on the interception of electronic communications, with substantial increases in surveillance capabilities over time.

Today, the use of electronic surveillance by the United Kingdom is controlled by laws made in the UK Parliament. In particular, access to the content of private messages (that is, interception of a communication) must be authorised by a warrant signed by the Home Secretary.[1][2][3] In addition European Union data privacy law applies in UK law. The United Kingdom exhibits governance and safeguards as well as use of electronic surveillance.[4][5][6]

The judicial body which oversees the intelligence services in the United Kingdom, the Investigatory Powers Tribunal, ruled that the legislative framework in the United Kingdom does not permit mass surveillance and that while GCHQ collects and analyses data in bulk, it does not practice mass surveillance.[7][8][9] A special report published by the Intelligence and Security Committee of Parliament also came to this view while saying the legal framework should be simplified into a single law.[10][11][12] This view is supported by independent reports from the Interception of Communications Commissioner.[13] However, notable campaign groups and broadsheet newspapers continue to express strong views to the contrary,[14] while others have criticised these viewpoints in turn.[15]

Compatibility with human rights[edit]

The Investigatory Powers Tribunal ruled in December 2014 that the legal frameworks in the United Kingdom governing the bulk interception of data and intelligence sharing with agencies in other countries do not breach the European Convention on Human Rights, and are compliant with Articles 8 (right to privacy) and 10 (freedom of expression) of the European Convention on Human Rights.[7][8][9] Privacy and civil liberties advocates such as Liberty and Privacy International, who brought a legal case against the government to force the judgement, continue to oppose to the temporary bulk collection of data, powers to access this and retain selected data, as well as intelligence sharing relationships; they intend to appeal the judgement to the European Court of Human Rights. Furthermore, the Tribunal stated that one particular aspect of intelligence sharing, the data-sharing arrangement that allowed UK Intelligence services to request data from the US surveillance programmes Prism and Upstream, had been in contravention of human rights law until two paragraphs of additional information, providing details about the procedures and safeguards, were disclosed to the public in December 2014.[16][17][18] Mainstream commentators have criticised the viewpoint of privacy campaigners on this issue.[15] Following the publication of a special report by the Intelligence and Security Committee of Parliament on 12 March 2015, which identified shortcomings in past oversight and potential improvements to the legislative framework, the Prime Minister David Cameron initiated an inquiry into the legalisation governing the interception powers of the intelligence agencies.[19]

Data Retention and Investigatory Powers Act 2014[edit]

In April 2014, the European Court of Justice ruled the European Union's Data Retention Directive is invalid. The Directive requires telecommunications companies to retain their customers' communications data for up to two years. The EU Court found it violates two basic rights, respect for private life and protection of personal data.[20]

Supported by all three major political parties in the UK, Parliament passed the Data Retention and Investigatory Powers Act in July 2014 to ensure the police and security services retain existing powers to access telephone and internet records.[21][22] No additional powers are granted by the legislation, but it does make clear that the requirements also apply to foreign companies, based abroad, whose telephone and internet services are used in the UK.[23]

The data being retained does not include the content of messages and telephone calls, just metadata describing when and who the users contacted by email, telephone, or text message. In circumstances where the Home Secretary issues a warrant for intercepting the content of private messages, the Act clarifies the law with which internet services providers must comply.[23]

Provisions were included in the Act to "increase transparency and oversight"; the BBC reported that this included the following:[23]

  • The creation of a Privacy and Civil Liberties Oversight Board to scrutinise the impact of the law on privacy and civil liberties.
  • Annual government transparency reports on how these powers are used.
  • The appointment of a senior former diplomat to lead discussions with the US government and internet firms to establish a new international agreement for sharing data between legal jurisdictions.
  • A restriction on the number of public bodies, including Royal Mail, able to ask for communications data under the Regulation of Investigatory Powers Act (RIPA).
  • Inclusion of a termination clause ensuring the powers under this Act expire at the end of 2016.
  • Statement that a wider review of the powers needed by government should be undertaken during the next parliament (after the general election in May 2015).

Protection of Freedoms Act 2012[edit]

Context[edit]

Following the 2010 general election the new government stated it would take measures to "reverse the substantial erosion of civil liberties and roll back state intrusion".[24]

A report by the House of Lords Constitution Committee, Surveillance: Citizens and the State,[25] had warned in 2009 that increasing use of surveillance by the government and private companies was a serious threat to freedoms and constitutional rights, stating, "The expansion in the use of surveillance represents one of the most significant changes in the life of the nation since the end of the Second World War. Mass surveillance has the potential to erode privacy. As privacy is an essential pre-requisite to the exercise of individual freedom, its erosion weakens the constitutional foundations on which democracy and good governance have traditionally been based in this country."[26]

A YouGov poll published in 2006 indicated that 79% of those interviewed agreed that Britain has become a 'surveillance society’ (51% were unhappy with this).[27] In 2004 the Information Commissioner, discussing the proposed British national identity database gave a warning of this, stating, "My anxiety is that we don't sleepwalk into a surveillance society."[28] Other databases causing him concern were the National Child Database (ContactPoint), the Office for National Statistics' Citizen Information Project (which subsequently became part of the national identity database), and the National Health Service National Programme for IT.

As part of the new measures announced by the government in 2010, the national identity database, including ContactPoint, was scrapped.[24]

In addition, the Draft Communications Data Bill, which would have extended powers, for example to include web browsing history, was abandoned by the government in 2013 after opposition from the Deputy Prime Minister Nick Clegg.[29]

Legislation[edit]

The Protection of Freedoms Act 2012 includes several provisions related to controlling or restricting the collection, storage, retention, and use of information in government databases, specifically:[30]

  • Part 1, Chapter 1 requires that fingerprints, footwear impressions, and DNA profiles taken from persons arrested for or charged with a minor offence be destroyed following either a decision not to charge or following acquittal; amends the Police and Criminal Evidence Act 1984, and the Crime and Security Act 2010, relating to the retention of fingerprints; and instructs the Secretary of State to make arrangements for a "National DNA Database Strategy Board" to oversee the operation of a DNA database.
  • Part 1, Chapter 2 requires schools and colleges to obtain consent of one parent of a child under 18 before acquiring and processing the child's biometric information, gives the child rights to stop the processing of their biometric information regardless of any parental consent, and requires that if any parent of the child objects to the processing of biometric information, it must be discontinued.
  • Part 6 extends the existing Freedom of Information Act 2000 and amends the role of the Information Commissioner, including widening the rules on applying for and receiving datasets from public authorities for re-use. And, while the Information Commissioner was already independent of Government in making regulatory decisions, the Act takes steps to further enhance the day-to-day corporate and administrative independence of the Commissioner.

Part 2, Chapter 1 of the Protection of Freedoms Act 2012 creates a new regulation for, and instructs the Secretary of State to prepare a code of practice regarding the use of closed-circuit television and automatic number plate recognition.[30]

Regulation of Investigatory Powers Act 2000[edit]

The Regulation of Investigatory Powers Act 2000 (RIP or RIPA) is significant piece of legislation that granted and regulated the powers of public bodies to carry out surveillance and investigation. Activities covered by the Act include the interception of the content of telephone, internet, and postal communications; collection of information about, but not the content of, telephone, Internet, and postal communications (type of communication, caller and called telephone numbers, Internet addresses, domain names, postal addresses, date, time, and duration); use of agents, informants, undercover officers; electronic surveillance of private buildings and vehicles; following people; and gaining access to encrypted data.[31]

RIPA allows certain public bodies:[31]

The powers granted by RIPA can be invoked by government officials on the grounds of national security, for the purposes of preventing or detecting crime or serious crime, preventing disorder, protecting public safety or health, in the interests of the economic well-being of the United Kingdom, assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department, or in an emergency, preventing or mitigating death, injury, or any damage to a person’s physical or mental health. Some of the powers granted by the Act are available to a relatively short list of from 5 to 12 government bodies, while others are available to longer lists of over 40 bodies.[31]

The 2000 Act received Royal Assent on 28 July 2000 and Commencement Orders bringing provisions within this Act into force were issued between 2002 and 2012. Where prior legislation exists, the 2000 Act works in conjunction with that legislation, in particular the Intelligence Services Act 1994, the Police Act 1997, and the Human Rights Act 1998.[32]

The Act has been amended several times, to both extend and restrict the powers granted.[33] In 2002 the UK government announced plans to extend the Regulation of Investigatory Powers Act so that at least 28 government departments would be given powers to access metadata about citizens' web, e-mail, telephone and fax records, without a warrant and without a subject's knowledge.[34] Public and security authorities made a total of 440,000 requests to monitor people's phone and internet use in 2005-2006.[35] In the period 11 April to 31 December 2006 the UK government issued 253,557 requests for communication data, which as defined by the RIPA includes who you phoned, when they phoned you, how long they phoned you for, subscriber information and associated addresses.[36]

Safeguards[edit]

The Data Protection Act 1998 requires a formal warrant before private data may be gathered by the government. Warrants authorising interception of the content of electronic communications can only be issued by a democratically elected Member of Parliament, usually the Home Secretary, or another Secretary of State.[37]

The Regulation of Investigatory Powers Act established the Investigatory Powers Tribunal to provide judicial oversight and hear complaints about surveillance activities by intelligence agencies and other public bodies.[31] The Tribunal replaced the Interception of Communications Tribunal, the Security Service Tribunal, and the Intelligence Services Tribunal on 2 October 2000. Between 2000 and 2009 the Tribunal had upheld 4 out of the 956 complaints received.[38]

Telecommunications Act 1984[edit]

The use of the Telecommunications Act 1984 for communications data collection, and the lack of oversight of this capability, was highlighted in the April 2014 report of the Home Affairs Committee of the House of Commons on Counter-terrorism.[39] This was reiterated in the March 2015 report of the Intelligence and Security Committee of Parliament on Privacy and Security.[11] Section 94 of the Telecommunications Act 1984 allows a Secretary of State to give providers of public electronic communications networks “directions of a general character… in the interests of national security”, which may be protected from disclosure.[40] The Act also gives the government certain powers to block foreign involvement in the critical national infrastructure of the United Kingdom.[41]

Internet, fixed and mobile telephone communications[edit]

Since October 2007 telecommunication companies have been required to keep records of phone calls and text messages for twelve months under the European Union's Data Retention Directive.[42] Though all telecoms firms already keep data for a period, the regulations are designed to ensure a uniform approach across the industry.[43] This has enabled the Government and other selected authorities within the UK such as Police and Councils amongst others to monitor all phone calls made from a UK landline or Mobile upon request.

In 2008 plans were being made to collect data on all phone calls, e-mails, chat room discussions and web-browsing habits as part of the Government's Interception Modernisation Programme, thought likely to require the insertion of thousands of black box probes into the country’s computer and telephone networks.[44] The proposals were expected to be included in the Communications Data Bill 2008. The "giant database" was to include telephone numbers dialled, the websites visited, and addresses to which e-mails are sent, but not the content of e-mails or telephone conversations.[45] Chris Huhne, Liberal Democrat Home affairs spokesman, said, "The government's Orwellian plans for a vast database of our private communications are deeply worrying."[46] In November 2009, ministers confirmed that the estimated £2 billion project would proceed as planned. A consultation found that 40% of people were against the plans which would also include monitoring communications in online games.[47]

The Interception Modernisation Programme was renamed the Communications Capabilities Development Programme in 2010,[48] and development of a new Draft Communications Data Bill began.

The police have used mobile phones to track suspects.[49] Some shopping centres have also tracked customers through mobile phone signals. A system can tell when people enter the centre, how long they stay in a particular shop, and what route each customer takes. The system works by monitoring the signals produced by mobile handsets and then locating the phone by triangulation.[50][51]

In 2013, issues regarding the possible discovery of "storage chips" in commercial keyboard, touchpad and LCD controller semiconductors on devices such as laptops and desktops have been raised by the destruction of these components at the Guardian newspaper after the revelations of leaked documents. It appears that this is a cross platform issue as both iOS and Windows host devices use similar chips that in some cases store 4MB of data for diagnostic purposes and firmware storage which is both closed source and confidential.[52]

GCHQ programmes[edit]

Further information: Global surveillance

A series of media reports in 2013 revealed bulk collection and surveillance techniques involving GCHQ such as Tempora and its component programmes Mastering the Internet and Global Telecoms Exploitation.[53] Other programmes operated jointly with the NSA include MUSCULAR, Dishfire, and Stateroom.

ECHELON is a signals intelligence collection and analysis network operated on behalf of the five signatory states to the UKUSA Security Agreement, Australia, Canada, New Zealand, the United Kingdom, and the United States.

Edgehill is a code name for a clandestine, highly classified decryption programme run by GCHQ, similar to the BULLRUN programme in the US.

Legislation and Governance[edit]

The role of GCHQ is prescribed in the Intelligence Services Act 1994. Activities that involve interception of communications are permitted under the Regulation of Investigatory Powers Act 2000; this kind of interception can only be carried out after a warrant has been issued by a Secretary of State. The Human Rights Act 1998 requires the intelligence agencies, including GCHQ, respect citizens' rights as enumerated in the European Convention on Human Rights.[1][7]

The Prime Minister nominates cross-party Members of Parliament to an Intelligence and Security Committee. The remit of the Committee includes oversight of intelligence and security activities and reports are made directly to Parliament.[54]

The UK also has an independent Intelligence Services Commissioner and Interception of Communications Commissioner, both of whom are former senior judges.[55] Judicial oversight of GCHQ's conduct is provided by the Investigatory Powers Tribunal.[56]

Reforms[edit]

The Justice and Security Act 2013 included a range of reforms to the Intelligence and Security Committee to provide for further access and investigatory powers. The Telegraph newspaper reported that this included the following:[6]

  • The nine members of the committee are still nominated by the Prime Minister, but the House of Commons has the power veto the Prime Minister's suggestions. Previously, Parliament had no power to block such appointments.
  • The panel now probes recent operations by the agencies. Before, its remit had only been for “resources, policy and administration” and it had seldom looked at specific operations.
  • Officials acting for the committee are able to enter the premises of the intelligence agencies to inspect files and decide what the panel needs to see.
  • Agencies are “required” to publish information unless handing over such details would compromise national security and they can obtain permission from the Prime Minister. Previously, the committee only had the power to “request” information.
  • To signify the panel’s new status, its name was changed to the “Intelligence and Security Committee of Parliament”.

National databases[edit]

Active[edit]

Fingerprints and DNA[edit]

The British Police hold records of 5.5 million fingerprints and over 3.4 million DNA samples on the National DNA Database. There is increasing use of roadside fingerprinting, using new police powers to check identity.[57] Concerns have been raised over the unregulated use of biometrics in schools, affecting young children.[58]

Vehicle tracking[edit]

Across the country efforts have been increasingly under way to track road vehicle movements, initially using a nationwide network of roadside cameras connected to automatic number plate recognition systems. These have tracked, recorded, and stored the details of journeys undertaken on major roads and through city centres with the information is stored for two years.[59][60] In the future, mandatory onboard vehicle telematics systems have been suggested, to facilitate road charging (see vehicle excise duty).

Public transport[edit]

In London, the Oyster card payment system can track the movement of individual people through the public transport system,[61] although an anonymous option is available, while the London congestion charge uses computer imaging to track car number plates.[62]

Overseas travel[edit]

In February 2009 it emerged that the government was planning a database to track and store records of all international travel into and out of the UK. The database would retain record of names, addresses, telephone numbers, seat bookings, travel itineraries and credit card details, which would be kept for 'no more than 10 years'.[63]

Protests[edit]

Police Forward Intelligence Teams have conducted surveillance of political and environmental protestors and of journalists. The information they gathered has been stored in the crimint database.[64]

Disbanded[edit]

Identity cards[edit]

The Identity Documents Act 2010 repealed the Identity Cards Act of 2006,[65][66] scrapping the mandatory ID card scheme and associated National Identity Register that had been in use on a limited or voluntary basis since November 2008, but which was never fully implemented.[67][68] The National Identity Register was destroyed on 10 February 2011.

Foreign nationals from outside the European Union continue to require an ID card for use as a biometric residence permit under the provisions of the UK Borders Act 2007 and the Borders, Citizenship and Immigration Act 2009.[69][67] Although the 2010 Act ended the validity of ID cards as travel documents, no action was taken to withdraw the National Identity Cards already issued.[67]

CCTV networks[edit]

A bank of seven closed-circuit television cameras monitoring people exiting Birmingham New Street Station, a major British railway station.

The combination of CCTV and facial recognition could be considered a form of mass surveillance, but has not been widely used.[70] This type of system has been trialled at airports to compare faces with biometric passports, but such an application is comparable to existing identification checks at borders.[71]

In 2005 the City of Westminster trialled microphones fitted next to CCTV cameras. Westminster council explained the microphones are part of an initiative to tackle urban noise and will not "be used to snoop", but comments from a council spokesman appear to imply they could capture an audio stream alongside the video stream, rather than simply reporting noise levels.[72] The trials were discontinued in 2008 with no further plans for use.[73]

A study produced by Dr. Antony Brooks of the University of Liverpool examined, as of February 2010, some cities' use of CCTV which allowed an operator who saw something illegal or troubling to speak via loudspeaker into the street; some operators also had microphones to hear audio along with the video. Dr. Brooks disputed the statistics produced supporting the relevance of the technology for the UK's major cities, stating "...the crime is merely observed, yet not prevented."

The Home Office published a code of practice in 2013 for the use of surveillance cameras, including automatic number plate recognition systems, by local and government authorities. The aim of the code is to help ensure CCTV use is "characterised as surveillance by consent, and such consent on the part of the community must be informed consent and not assumed by a system operator. Surveillance by consent should be regarded as analogous to policing by consent."[74]

Number of cameras[edit]

The vast majority of CCTV cameras are not operated by the UK Government, but by private companies, especially to monitor the interiors of shops and businesses. According to 2011 Freedom of Information Act requests, the total number of local government operated CCTV cameras was around 52,000 over the entirety of the UK.[75]

An article published in CCTV Image magazine estimated the number of private and local government operated cameras in the United Kingdom was 1.85 million in 2011. The estimate was based on extrapolating from a comprehensive survey of public and private cameras within the Cheshire Constabulary jurisdiction.[76] This works out as an average of one camera for every 32 people in the UK, although the density of cameras varies greatly from place to place. The Cheshire report also claims that the average person on a typical day would be seen by 70 CCTV cameras.

The Cheshire figure is regarded as more dependable than a previous study by Michael McCahill and Clive Norris of UrbanEye published in 2002.[77] Although it has been acknowledged for several years that the methodology behind this figure is flawed,[78] it has been widely quoted. Based on a small sample in Putney High Street, McCahill and Norris extrapolated the number of surveillance cameras in Greater London to be around 500,000 and the total number of cameras in the UK to be around 4,200,000. According to their estimate the UK has one camera for every 14 people.

The CCTV User Group estimated that were are around 1.5 million private and local government CCTV cameras in city centres, stations, airports, and major retail areas in the UK.[79] This figure does not include the smaller surveillance systems such as those that may be found in local corner shops and is therefore broadly in line with the Cheshire report.

Research conducted by the Scottish Centre for Crime and Justice Research and based on a survey of all Scottish local authorities, identified that there are over 2,200 public space CCTV cameras in Scotland.[80]

European Union[edit]

As a member of the European Union, the United Kingdom is subject to EU policies and directives on surveillance and participates in its programmes.

See also[edit]

References[edit]

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