Regular readers of my blog may or may not be aware that my Commission is due to come to its natural end in March.
At the time of writing this I’ve had no clarity as to what plans there may be for the future of my role (the Surveillance Camera Commissioner (SCC)) beyond this date. I am assured by the Home Office that they have plans.
One suspects that as I, like the Home Secretary, am contributing my views to the Court of Appeal in the forthcoming case of R(Bridges) v The Chief Constable of South Wales Police (viz the use of live facial recognition technology) that a short extension to facilitate this court process may prevail. We shall see, and hopefully soon.
It is with the end in mind that I’ve decided to write a short series of blogs to highlight the successes and indeed failures over the six years I’ve held this role. So, as my tenure draws to a close the theme of this blog has been a constant refrain from me – “things need to change.”
A time for change
The role of the SCC is unique globally as a regulatory focus in England and Wales. That uniqueness has enabled many stakeholders including the Government and the public to benefit from a more intrusive and detailed regulatory insight than any other country regarding the issues facing society from the growing phenomenon of state surveillance conducted by means of a camera lens.
My role emerged from the coalition government of the day who considered that the growth of surveillance camera systems being operated by the state represented an increasing risk to the liberties of our citizens. The risks were considered to be significant enough to require an additional and specialised regulation beyond data protection legislation.
Of course, in those days, the modern surveillance camera systems in public places largely amounted to little more than CCTV (in colour with high definition) and a growing ANPR capability. Through the Protection of Freedoms Act 2012 the SCC role was created and followed by the Surveillance Camera Code of Practice in 2013 – incidentally the same year as the launch of the iPhone 5 in the UK.
How things in the next six years changed. New surveillance camera technologies are challenging the delicate balance between privacy and security. I have seen the emergence and increase in the number surveillance cameras – body worn cameras, drones, ANPR cameras, dashboard cameras, handlebar cameras, and even dog borne cameras watching over us. At the same time the lenses in those cameras are augmented by technologies which can recognise faces, a walking gait, can predict fights, detect explosives or radiation, can read lips, can see in the dark, determine body heat, and of course can combine with other capabilities to produce quite an intrusive dive in to a broad range of our precious freedoms to whoever is behind the camera, and their partners.
By the same token, the threats facing society are similarly evolving and finite law enforcement resources must out of necessity use technology to keep us safe.
To be clear, I am and always have been strongly of the view that the police should have the tools they need to keep us safe. We have the best police in the world committed to do the right things in the right way. For me there is no question on that point. In the context of cameras, citizens and the state need the confidence in clear laws and regulation which proportionately enables the ethical use of technologies and holds such use to account now, and in he future. I continue to bang the drum on both points until the very end.
So, here’s the deal
Currently the efficacy of the legal framework around the state use of LFR rests heavily on the judgement in the case of R(Bridges) v Chief Constable of South Wales Police. I urge caution on the part of the police to regard this judgement as being a ‘green light’ for the use of this technology in society.
The creativity and potential of LFR by the police whether for intelligence, operational or tactical purposes requires each case to be judged on its merits against existing laws on a case by case basis. Respecting that the court in the Bridges case considers existing laws to be ‘clear’ and ‘sufficient’ (para 84 judgement) the court also acknowledged (at para 84), their view that:
a) steps could, and perhaps should, be taken further to codify the relevant legal standards; and b) the future development of AFR technology is likely to require periodic re-evaluation of the sufficiency of the legal regime.
These are messages which I have been urging the Home Office to consider since 2015. The declared purpose of the Secretary of State’s Surveillance Camera Code of Practice (para 1.5) is:
to ensure that individuals and wider communities have confidence that surveillance cameras are deployed to protect and support them rather than to spy on them.
That strategic purpose rather like the content of the Code itself, remains unchanged since 2013 yet the ‘spying’ risks associated with the capabilities it regulates have changed considerably.
In acknowledging the considerable increase in investment and statutory capabilities inherent with data protection legislation, I have long believed that a re-evaluation of laws and regulation is necessary. Readers of my blog will know that I am of the view that effective legislation and regulation of these matters in the future should be decided upon by regarding such conduct through the prism of ‘surveillance’ – essentially looking for data to acquire and process for a particular and ECHR intrusive purpose.
I firmly believe that whenever the police or law enforcement agencies deploy a camera in public to look at people, they are conducting ‘surveillance’, that surveillance is an investigatory power however it is conducted and should be regulated as such. The court in Bridges and I are on the same page as to the need to ‘re-evaluate these matters.
Time for a review
Beyond a promise to do so within the Home Office Biometrics Strategy I have consistently failed to convince the Home Office to update the SC Code since I reviewed its contents myself against the emerging surveillance landscape in 2015. I have also failed to convince the Home Office to commission an independent review of the laws governing overt state surveillance in a manner similar to that conducted by Sir David Anderson QC, “A Question of Trust”. Indeed, my proposal to have all manner of state surveillance regulation placed within a single regulatory body with judicial leadership (essentially moving my function or parts of my function under the leadership of IPCO or being more closely aligned) similarly found no fertile ground, despite being supported by the previous Investigatory Powers Commissioner.
The debate continues
Of course, such matters are for Government and Parliament to determine. My powers are simply to advise. I am heartened however to see that the guidance I have provided, the debates I have engendered and the challenges I have laid to practitioners have resulted in higher standards of operational and regulatory approach elsewhere, and of course those debates continue.
So, in the context of LFR and many other emerging surveillance camera capabilities, whether you take the view that such activity using this technology is no different to a police ‘spotter’ at a demonstration looking for people, or is more reminiscent of ANPR reading car number plates comparing them against a watchlist as they travel on a road (in a manner described at paragraph 219 of the Office of Surveillance Commissioners Procedures and Guidance 2016) one thing is for sure, this debate has yet to run its course. There can be no complacency anywhere as to the notion that what is considered sufficient today will be so tomorrow. It will not.