Robin Wilton's esoterica

Just a quick post to let you know that I've had a paper published: it's on "Identity and Privacy in the Digital Age" , and it's in the International Journal of Intellectual Property Management (IJIPM).

I'd like to thank Dr. Rebecca Wong, Senior Lecturer at the Law School of Nottingham Trent University for inviting me to submit it, and for her invaluable editorial help and advice.

The Home Secretary spoke today to Intellect, the UK trade association for the technology industry (you may remember them from the heated exchange of letters between their Director General, John Higgins, and Shadow Home Secretary David Davies back in 2007), about CCTV, DNA and the Regulation of Investigatory Powers Act (RIPA). Although, presumably, the linking theme was intended to be 'technology and its relation to law and order', she made only one passing reference to ID cards, and none to other notable features of the technological landscape, such as the NHS "Spine" database of electronic patient records, or to the potential for government data-sharing to be every bit as privacy-invasive as CCTV.

In fact, her reference to ID cards was a masterpiece of ambiguity. Here's the quotation (my addition in square brackets):

"Are we being as transparent [in the implementation of technology] as possible – and as with ID cards, how do we provide individual citizens with the right level of choice and control?". Note the sleight of hand there... is this a hint at an implication that the National Identity Scheme already offers citizens the 'right level of choice and control', or a laudable aspiration to offer citizens choice and control with ID cards as well as in areas like the introduction of CCTV and DNA swabs? I wonder... and why do I have the uneasy feeling that, while I was watching a rabbit come out of the hat, I failed to notice the abstraction of my wallet?

It could be because the rest of the speech touches frequently on the topic of DNA samples and profiles but, again, refers only in passing to "the recent European Court judgement". There is no mention of compliance with the court's unanimous ruling, rather, a list of conditional changes to the current practices, and a commitment to remove the DNA of those under 10 years of age. From the title downwards ("Protecting rights, protecting society"), the Home Secretary's speech seeks to emphasise the need for balance between privacy and human rights on the one hand, and law enforcement and intrusion on the other. Unsurprisingly she does not refer to the fact that the European Court of Human Rights (ECHR) has already made that calculation and concluded that the current policy is not proportionate, and fails "to strike a fair balance between the competing public and private interests".

There is what sounds like a rather grudging concession that "these changes will see some people coming off the database" - but what of for the European Court of Human Rights' clear principal finding - that the retention of DNA samples and profiles of innocent people "cannot be regarded as necessary in a democratic society"?

Here's what she says about that: [a more flexible approach] "could mean limiting how long the profiles of those who have been arrested but not convicted of an offence could be retained. We are also re-examining retention arrangements for samples."

That sounds a lot like "no change" to me.

I wrote several posts back in 2005 about the fatal shooting of Jean Charles de Menezes, and the extraordinary discrepancies which subsequent enquiries revealed between the versions of events put out be the police, and those subsequently found to be the case. For instance, this post from August 2005, at which time some of the initial factors cited by the police for their tragic decisions were already being called into question. Remember that, on the basis of those factors, the police's conclusion was that Mr de Menezes was a 21/7 suicide bomber on the run, that he represented the imminent threat of a large-scale attack on users of the public transport system, and that if they "were deployed to intercept a subject and there was an opportunity to challenge, but if the subject was non-compliant, a critical shot may be taken".

In some instances, it appears that the police acted on mistaken information or assumptions; for instance, they alleged that Mr de Menezes ran away 'because he was working in the UK on an expired visa'. That allegation seems to have evaporated in the light of scrutiny. As the recently-concluded coroner's inquest has established, the identification of Mr de Menezes was flawed: in part, this was for reasons known shortly after the event - a surveillance officer supposed to identify anyone leaving Mr de Menezes' block of flats was answering the call of nature at the critical moment. In part, it was (we now find out) because although clear, usable photos of the actual suspect were available to the police, they had not been distributed to the surveillance or firearms teams responsible for making the crucial identification.

In other instances, the discrepancies are less easy to explain away: the police initially alleged that Mr de Menezes' suspicious behaviour included running into the tube system and vaulting the ticket barrier instead of paying. CCTV footage revealed that to be a fabrication. Then, at the inquest, the jury returned a further damning decision: they acted on the evidence of civilian witnesses in the train at the time of the shooting, who directly contradicted the police assertions that Mr de Menezes had been verbally challenged before he was killed.

In other words, the operational order quoted above ("if the subject was challenged but non-compliant") was ignored. The non-compliance condition is absolutely critical here. Bear in mind that in making their plans, the police expected to be dealing with a suicide bomber, and might reasonably assume, therefore, that anyone they challenged could have some kind of 'dead man's switch'. The operational order implies that they were still expected to challenge a suspect, nevertheless, before taking a critical shot. As a result, the jury's verdict yesterday - even though the coroner restricted the verdicts he would permit them to deliver - came as close as those restrictions allowed to ruling that this was an extra-judicial, summary execution.

As Ian Hislop (editor of Private Eye, which has been covering this story since it began) said on Radio Five Live yesterday - the longer the police try to cover up the true details of an incident like this, the more the story is prolonged, the more likely it is that the truth will come out, and the worse the police look as a result.

Given my known interest in privacy, it was a fair bet that this article on the Pinsent Masons website would catch my eye... The article is mostly the same as one which was also printed in the FT's Technology/Digital Business pages, but you might need a subscription to read the full text there.

The author, Struan Robertson, who works for Pinsent Masons and edits their excellent OutLaw newsletter, writes about the recent hoo-haa over a Wikipedia page which included an image (taken from a 1970s album cover) which, by today's laws, is said to be likely to break UK child protection laws relating to the publication of erotically-posed images of subjects under 18. Let me say right at the outset that that is a legal topic on which I am in no way competent to comment, so on those questions, I am happy to take Mr Robertson's word.

However, he does seem to me to miss the point in a couple of respects, notably concerning the boundary between technology and the law... and that's an area where I do feel more qualified to comment. He notes, in the article, that the IWF (Internet Watch Foundation) added the Wikipedia page in question to a blacklist which was then put into effect by the UK's ISPs. As a result, he says, "prevented most UK internet users from accessing the Wikipedia page and it had the unintended side-effect of stopping those users from editing any of the millions of Wikipedia pages".

He goes on to say: "the IWF's model [...] bans pages, not the images themselves. It says this approach is simpler and more effective, though I confess that I don't understand why. Still, if that policy is disproportionate it is only slightly so: it did not blacklist an entire site".

Mr Robertson may, quite understandably, not know what the technical difference is between banning (UK) access to a page and banning (UK) access to a single image within a web page - especially when those pages are hosted outside the UK - but surely you don't have to be technical to understand the difference of effect between banning read access to a single page, and disabling write access to all the pages on a site. A site, incidentally, whose whole point is that it can be edited by anyone.

With respect, then, he is perhaps over-reaching himself with the assertion that such a policy is 'only slightly disproportionate'.

Mr Robertson concludes his article by observing that "[b]alancing our freedom of expression with the protection of children is difficult and important. It is a healthy issue to debate. But like any Wikipedia article, that debate needs some balance. This week that balance was missing."

I agree. Technically, I admit, it may not be easy to ensure that (only) UK internet users are unable to view (just) that image, but remain able to view the rest of that page and to edit Wikipedia pages in general. But that doesn't make the current  blanket ban proportionate, and advocating it as such does nothing to introduce balance into the argument.

"In the lands of the North, where the black rocks stand guard against the cold sea, in the dark night that is very long, the men of the Northlands sit by the great log fires and they tell a tale... ..."

 If those opening words mean anything to you, then news that Oliver Postgate has died will probably cause you sadness. Depending on your age, you may remember Ivor the Engine, Noggin the Nog, the Pingwings, the Pogles, the Clangers and/or Bagpuss - and if you do, you probably recall them with fondness even twenty, thirty or forty years later, such is the gentle power of Postgate's work.

A back-bench Labour MP, Bob Marshall-Andrews, has called for Speaker Michael Martin to resign over the Damien Green searches.

As you will see from the last section of the BBC article (sub-titled "Trust Breakdown"), the gaps are starting to show, both here and from the earlier disclosures via wikileaks, between the Speaker's initial Commons statement and the police version of events - notably concerning what was said about the notorious 'missing warrant'.

Clearly, part of the complexity here has to do with the fact that, while the office searched was Mr Green's, the police first had to gain lawful access to the House of Commons and then apply to someone for permission to enter the office itself. Their rationale for not approaching Mr Green himself would, understandably, be that be might have refused or made it impossible for them to recover whatever evidence they were looking for. The picture is further complicated by the fact that both the Speaker and his Serjeant at Arms have roles to play in protecting MPs and their premises, respectively.

So the police faced a problem - they needed to apply to one person (or possibly two) who could 'gate' their ability to search the offices of someone else. As was clear even from the Metropolitan Police letter to the Home Secretary, Section 8 of the Police and Criminal Evidence (PACE) Act is drafted specifically to cater for this situation:

A magistrate may grant a warrant for entry if "it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence". The police say they didn't apply for a warrant because they weren't sure they could convince a magistrate that that was the only way they were likely to gain access.

The fact that they weren't sure is hardly an excuse for not asking. That's why the magistrate is written into the process.

Then there's the question of the offence with which Mr Green is charged: "misconduct in public office". There is animated discussion of whether or not this is serious enough, in this case, to have justified his arrest and the searches. One indication is in the action taken against the civil servant involved: as yet, he has not been charged - least of all with a criminal offence. This strongly implies that the alleged offence does not pass the threshold set out in the Crown Prosecution Service guidance on "misconduct in public office", cited here on Carl Gardner's blog.

In defence of Mr Green's position, the CPS guidance clearly describes the offence in terms of the likelihood that what he did would be "such as to undermine the public's trust in him as the office holder". I would have thought that his diligence in uncovering facts which the government would have preferred - out of embarrassment - to keep hidden would have rather the opposite effect.

The guidance does say that, in gauging the seriousness of the offence, a broad view of its context and consequences should be taken. The Home Secretary has argued that the broader consequences of Mr Green's actions were such as to undermine the functioning of her department, and the impartiality of its civil servants. I have not yet seen her advance any evidence in support of that speculation.

On the face of it, then, there are reasonable doubts as to whether the police based their actions on a suitable offence, whether their actions were proportionate to the evidence and seriousness of that offence, and whether they followed due process in their dealings with officers of the House (not to mention their lack of dealings with any magistrate). It would be ironic, wouldn't it, if their actions proved to be such as to undermine the public's trust in them as office-holders? 

The Liberty Alliance will be hosting a webcast next Thursday (Dec. 11th) at 4pm GMT. Registration is through this URL.

ArisID has grown out of Liberty's existing IGF (Identity Governance Framework) programme, and was set up to work on two aspects of IGF:

- to produce a simple, web-services based implementation of Declarative Identity Services (in which applications state how they expect identity services to be provided, and assume that servers are intelligent enough to cater for that);

- to put Client Attribute Requirements Markup Language (CARML) into practice... so that there are effective ways for data subjects and data controllers to express their expectations.

(For more information, visit the ArisID wiki and FAQ here)

This is a really practical step towards simple but effective management of identity data and the associated relationships in which it is exchanged; if you're interested not just in where web-based identity management is heading, but how to get there, this is definitely a webcast to catch.

Further details are starting to emerge about the circumstances under which the police entered the House of Commons last week; the BBC has some of them, in this article, though it has to be said, the net result is further confusion rather than clarity.

Interestingly enough, the BBC article appeared some time after Wikileaks had already announced the publication of a letter from the Metropolitan Police to the Home Secretary giving responses to a number of questions concerning their access to the House. It may not surprise you to learn that that letter, too, does more to obfuscate than to clarify.

The essence of the police argument concerning whether or not they had a warrant to search Mr Green's office is as follows (The italics and paraphrasing here are mine, but only because the police letter is so convolutedly impenetrable. Whether that is intentional or accidental, I could not possibly say):

"PACE (the Police and Criminal Evidence Act) permits a magistrate to issue a warrant for consentless entry to premises in search of evidence of a suspected crime, if the officer in question believes the magistrate could be convinced that entry would not be granted without a warrant (i.e. on the basis of consent alone).

The officers in this case did not belive they would have been able to convince a magistrate that consent would be refused, and therefore did not ask for a warrant, because the strict requirements of PACE would not allow the magistrate to issue one under those conditions."

This raises at least as many questions as it purports to answer.

Let us, for the sake of argument, apply the 'reasonableness test' to three hypothetical cases.

- First, imagine that officers had asked Mr Green, directly, if they could search his office. He might well have felt it within his rights, as an MP, to refuse.

- Second, let's imagine that they asked the Speaker of the House, or the Serjeant at Arms, and either of those office-holders demonstrated the kind of concern for parliamentary sanctity which MPs from all parties have suggested is their duty. They might well have refused.

- Third, let's imagine that the officers had gone straight to a magistrate and asked for permission to search an MP's parliamentary office, looking for evidence of leaks which are acknowledged to have taken place, and on the basis of a common-law offence of 'improper behaviour in public office'. The magistrate might well have refused.

The police claim, then, is that they didn't ask for a warrant because they felt that would put a magistrate in the untenable position of having to decide, against reason, that consent for access would be refused. With respect, surely that is for a magistrate to decide, and that is why the magistrate's consent has to be sought. If the police cannot make a case which will convince the magistrate, then they know exactly where they stand. 

Surely the clear implication is this: that the police were happier to proceed without first applying to a magistrate, because they suspected what answer they would have got if they had done so.

The European Court of Human Rights (ECHR) has now issued its ruling, which (by unanimous vote of the 17 judges concerned) declares that the UK policy of retaining the DNA samples and profiles of innocent people breaches those individuals' rights.

In my previous post, I quoted the Home Office view that "Any intrusion on personal privacy is proportionate to the benefits that are gained". The ECHR ruling directly contradicts this, finding that the current policy is neither proportionate nor "necessary in a democratic society", and fails "to strike a fair balance between the competing public and private interests".

Another commenter on the ruling took issue with the Home Secretary's subsequent statement that "DNA [...] is vital to the fight against crime", pointing out that in Scotland, detection rates are higher than in England despite the Scottish policy requiring deletion of the DNA records of those not subsequently charged.

So far the Home Office response is intransigent: the current legislation will stay in place, they say, while they consider what steps to take next.

In a comment on yesterday's post, Richard Veryard astutely pointed out some of the absurdities in the apparent drafting of the Borders, Immigration and Citizenship Bill (BIC. Hmm. Is the fact that it's named after a cheap, throwaway razor some kind of dry civil service joke? Perhaps, somewhere in the Home Office, a drafting clerk is hugging him/herself with silent mirth as their handiwork is propagated).

Leaving that entrancing image to one side... Richard aptly wonders how on earth a police officer is supposed to tell that the person whose identity documents he/she wishes to inspect has been outside the UK - this being the criterion which would makes it legal for their papers to be demanded. As he also points out, there are more ways to enter the UK than by crossing its borders. Well, one, anyway.

This is probably part of a cunning plan by the UK Borders Agency. Having established their position in this bill, they will draft secondary legislation in due course to classify all maternity wards as "points of entry into the UK", thus formalising their entitlement to station an immigration officer by every bed and birthing pool. New arrivals could then be DNA-sampled and registered (only as provisional citizens, of course, until it is determined whether they are integrating effectively or not).

All of which might make the outcome of this case critical. The European Court of Human Rights is today expected to issue its ruling on the appeal of two UK citizens to have their DNA samples and profiles removed from the national database. The two men, who were both arrested and charged but acquitted, have spent years arguing that their DNA should not be retained on the database. Interestingly, the 'home page' for the NDNAD now reads like a commercial marketing brochure - pre-emptively defending the scheme against the most publicised criticisms of it.

In a little FAQ-like section at the bottom of the page, it poses these questions:

"Why are people who have not been convicted on the database?". Answer: because the law has been changed to allow it.

"Does this pose any privacy problems?" Answer: "Any intrusion on personal privacy is proportionate to the benefits gained."

Well, I'm glad that's sorted out, then.

"Nothing"... is the short answer. 

Here's a full transcript of the Queen's Speech. It doesn't mention identity documents, and it doesn't mention borders, immigration or citizenship.

The BBC's "At A Glance" summary of the next legislative programme does mention the "Borders, Immigration and Citizenship Bill", referring to border control measures, and the principle that 'failure to integrate' could slow down an immigrant's progress towards acknowledged citizenship. Similarly, over on the Home Office website, this UK Borders Agency page describes the Bill in terms of border control and processes for achieving integration and naturalisation.

Given all that, it's a little strange to hear some very specific concerns being raised about this Bill by UK human rights group Liberty. They describe a draft version of the legislation as sneaking compulsory ID cards in by the back door, saying that it increases the number of people who have the power to require individuals in the UK to produce a valid identity document if those individuals have ever entered the UK. Liberty point out that, as drafted, the law would include UK citizens who have left and re-entered the country. They also say that no suspicion of an offence is required to justify a demand to produce a valid identity document.

In other words, the law appears to be consistent with a peremptory power to demand that someone in the UK produce an identity document... something which proponents of the National Identity Scheme have consistently denied was in the legislative plan.

Presumably the folks at Liberty aren't just making this all up; presumably, therefore, there is a draft version of the Bill which says pretty much what they allege. If that's the case, two things strike me:

- First, it seems strange that the detail of the Bill should contain such far-reaching measures while the Bill itself is not even mentioned in the Queen's Speech, and the measures themselves are not mentioned in the owning department's published material.

- Second, if it really is not government policy that people in the UK sohuld have to produce an identity document on demand, it's bizarre that the Bill should be so loosely drafted as to make that a possible interpretation.

I've looked for a copy of the draft Bill, but haven't found one yet. If anyone knows where it can be found, please add a link via the Comments function...

I've just watched Michael Martin, Speaker of the House of Commons, make his statement to the House about the arrest last week of Damian Green MP. I think the most shocking aspect of his statement concerned the way in which the investigating police officers gained access to the Palace of Westminster and to Mr Green's office there.

It appears that the police did not have a warrant for that search, and did not inform the Serjeant at Arms that she was entitled to insist on one.

The Speaker's description of this episode creates a very shoddy impression: an impression of the police blagging their way into premises to conduct a search, when perhaps adherence to appropriate process would have raised legitimate objections to their proposed course of action. I wonder whether a police entry to an individual's home on the same basis would have resulted in the inadmissability of any evidence gathered as a result. It also, of course, raises the question of whether it is legally acceptable for one person (the Serjeant at Arms) to grant access not only to the Palace in general, but specifically to the office of an MP... or whether it would have been appropriate for the occupant of the office to have his consent sought.

That said, the Serjeant at Arms is responsible for security of the premises of the Palace of Westminster, and it reflects poorly on the execution of that role that its holder should not be aware of the rights she may exercise when granting or denying access.