Online Surveillance

Online Surveillance

Over the last decade there has been an increasing change in the nature of surveillance – particularly the ability to search online, through social networks and through semi-public sources of information, reinforcing the need for the law to be reformed to protect the public from unwarranted surveillance.
What needs to be made very clear is that just because information is on the internet, it does not necessarily follow that the police should collect and analyse it. It is essential that it the gathering of information is proportionate, necessary, balanced against the need of police to do their job, allows for a free and open internet and meets the public’s expectations of privacy.
Our recent report on the use of private investigators by public authorities highlighted how the Regulation of Investigatory Powers Act 2000 (RIPA) is in fundamental need of reform to protect against unauthorised surveillance; whether that be acquiring data through social media websites or the use of private investigators undertaking surveillance without appropriate supervision and

authorisation. As the Joint Committee on the draft Communications  Data Bill Warned, the “language of RIPA is out of date and should not be used as the basis on new legislation.”
A new report by the Centre for the Analysis of Social Media (CASM) has highlighted the difficulties of balancing between policing and expectations of online privacy. The report talks about social media intelligence (SOCMINT), the gathering of “powerful, recent and possibly decisive intelligence”, as being an inevitable part of modern policing; however there are clear questions regarding the legal basis for its use, which is currently unclear.
CASM sensibly conclude that “there needs to be an enabling ethical, legal and regulatory framework that allows the police to use social media with the confidence that what they are doing is legally permissible, protects the reputation of their organisation and ultimately commands public confidence.” This can certainly be achieved by creating a clear framework that is unambiguous, consistently applied across the country and with a strategy that links enabling legislation police practice, doctrine and procedure.
RIPA does provide the basic legal basis for SOCMINT, however it has to be understood that Facebook and Twitter (and most other social networks) did not exist when RIPA was created, and we have seen from other the Twitter trials that it is exceptionally hard to simply slot new technologies into existing legislation.
Due to the ambiguity and lack of clarity it is inevitable that public authority ‘official tweeters’ will occasionally find themselves in hot water.  One example being 4 out of 45 officially accredited ‘tweeters’ at

Northamptonshire police being stripped of their duties following concerns that their tweets might breach the Data Protection Act for both investigative and legal reasons.
Arguably, intrusive policies like this do not make the public safer or tackle the causes of crimes and gangs. However the way that information and criminal activity is taking place is changing, and as a result so must the ways in which we maintain law and order. However, at the forefront of these changes needs to be digital freedom and liberty reaffirming that RIPA is badly out of date and in need of fundamental reform before any further powers complicate the law further.
We have highlighted that the current drafting of “relevant publisher” for the purposes of the Leveson law risks capturing blogs and organisations like Big Brother Watch in a system of regulation never intended for them.
The Government’s amendment to the Crime and Courts Bill exempts “a person who publishes a small-scale blog” from the definition of “relevant publisher” is an attempt to deal with growing concern, as demonstrated by the 20 person signatory letter in Saturday’s Guardian.
Sadly the amendment offers no definition of what is “small scale” or how it relates to an organisation who publishes the blog in question, so the compromise arguably makes the situation worse. The first time an organisation is sued as being a relevant

publisher would have to fight in court  to prove they are not – or risk facing exemplary damages. That could be a hefty legal bill and for small organisations a fight they might not be able to even consider, let alone see to the end.
While this is not to say that we are happy for large organisations to be regulated by the state – quite the opposite – we are deeply concerned that those who cannot afford the lawyers to fight the initial case of whether they are a “relevant publisher” would be caught up in the proposed system.
According to various sources the Government will use the coming weeks to consult with relevant people to move things forward. We hope they can find a way to produce legislation that doesn’t require people to risk bankruptcy to clear up poor Parliamentary drafting.
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