The Biometrics and Surveillance Camera Commissioner Professor Fraser Sampson has praised the government on a sensible decision not to hand oversight of police use of DNA and fingerprints to the Information Commissioner’s Office (ICO) but warned it’s a job only half done.
The government today revealed that it had scrapped plans to move several key functions of the Biometrics and Surveillance Camera Commissioner’s role into the hands of the powerful ICO data regulator.
The plan to move oversight of police use of biometrics appeared late last year in a major government consultation called: Data: A New Direction.
Several respondents, including Professor Sampson, told the government that, for various reasons, it was a bad idea. See OBSCC formal response to Data: A New Direction.
Today, in its formal response to that consultation (see section 5.8), the government said:
In the light of this feedback and wider engagement, including with the current Biometrics and Surveillance Camera Commissioner and law enforcement partners, the government… has decided not to transfer these functions to the ICO…
Professor Sampson said:
It’s a sensible decision, as far as it goes. But the government’s response needs detail on what they plan to do now with these particular important functions. I won’t be in a position to offer any meaningful observations until they have some specifics about what will come next in terms of providing strong, principled, and independent oversight in these important areas.
We now have an opportunity to come up with something really good, not only in relation to DNA and fingerprints, but also in relation to other existing and emerging biometric technology such as live facial recognition.
We are talking about technologies that, it seems to me and many others, are going to play larger and larger roles in all our lives. We need a way of keeping in step with fast-paced change in these areas in order to provide the public with the reassurance they need that this tech will be used lawfully, responsibly and according to a set of clear bright line principles that will ensure the circumstances of their use are dictated by what society agrees is acceptable and not just what technology makes possible.
The government response says it will explore whether the existing Investigatory Powers Commissioner, can instead take on some of the Biometrics Commissioner’s functions.
Professor Sampson said:
As Biometrics Commissioner I independently oversee the use of investigatory powers involving biometric material, ensuring they are used in accordance with the law and in the public interest. This description is almost identical to that of the Investigatory Powers Commissioner, and it makes far more sense for any transfer to go in that direction which was not an option in the original consultation questions although who would be taking the 100+ decisions per month on National Security Determinations is not yet clear.
The government’s policy in this area continues to be one of ‘incremental steps’ to simplify regulation in this arena.
Professor Sampson continued:
If Parliament decides to move the functions, the next necessary step in simplification will be to have one definition of biometrics. At the moment ‘biometrics’ in policing only covers the traditional fingerprints and DNA while schools have a wider but less regulated definition. ‘Next generation biometrics’ such as facial recognition, iris, vascular patterns, hormones and gait are as much ‘biometrics’ as our fingerprints, and are – as we heard at the event in London on ‘Legitimacy of facial recognition in policing and law enforcement’ just this week - a matter of growing public concern.
In addition, almost all the capability in this area is privately owned, requiring our private sector technology partners to demonstrate that they can be trusted in respect of their security arrangements and their ethical values. Not only would this simplify things, it would also bring the UK into line with many other countries with whom we share biometrics for law enforcement and national security purposes.
The government’s consultation response also said it would seek to remove “duplication” between the ICO and Surveillance Camera Commissioner aspect of Professor Sampson’s dual role.
The Professor said:
The commissioner’s functions flow directly from the Secretary of State’s duty to publish a Code of Practice for the surveillance of public space. If that duty were to be transferred to the Information Commissioner, it would follow that responsibility for compliance might sit with them, although many of the public’s concerns about the expansion in state surveillance are not data protection issues at all.
The acid test for any framework for the police use of biometric and overt surveillance technology will be how far it allows us to know that their technical capabilities (what is possible) are only being used for legitimate, authorised purposes (what is permissible) and in a way that the affected community is prepared to support (what is acceptable).