ORG policy update/2015-w30

This is ORG's Policy Update for the week beginning 17/07/2015

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National developments

Police Scotland pushes for a new centralised system of CCTV as report finds the current situation could be unlawful

A classified 2013 Police Scotland was brought to light by The Ferret this week. It reveals information worrying for Scottish citizens' privacy, such as failures to audit some CCTV networks for compliance with data protection laws or a “clear lack of strategic leadership and accountability”. To keep the 2,800 cameras network fit for purpose, Police Scotland is publicly demanding for a several million pounds plan in order to put in place a centralised and more reliable network. The agency said it was part of an “ongoing dialogue” with Scottish Ministers, councils and CCTV partnerships to pursue this plan.

The plan, as well as the revelations of the report, have alarmed privacy campaigners. The Scottish Lib Dem Leader, Willie Rennie, called for “steps to regulate CCTV cameras to prevent inappropriate surveillance in our community”. Pol Clementsmith, from the newly established Open Rights Group Scotland, warned against a “sleepwalking into a surveillance state”, and drew attention on the “ catalogue of errors […] potentially breaching data-protection laws on a daily basis” published by The Ferret.

Legal developments

Government announces it will challenge ruling finding DRIPA unlawful

Last week, the High Court found the Data Retention and Investigatory Powers Act 2014 (DRIPA) unlawful. The Court is suspending its order until March 31st, 2016, in order “to give parliament the opportunity to put matters right”.

DRIPA was rushed through Parliament in July 2014 and allows for the bulk collection of metadata. The challenge brought by two MPs, David Davis and Tom Watson, as well as several NGOs (including Liberty and Open Rights Group) was successful, but the government announced it will appeal the judgment. Security minister John Hayes declared that communications data are “crucial in the investigation of serious crime”. He disagreed “absolutely” with the argument that DRIPA didn't reach the safeguards necessary to make blanket data retention lawful according to European Court of Justice judgment on the Data Retention Directive. The government stated that it will take "whatever steps are necessary to ensure communications data continues to be available when it is needed”.

MPs challenge interception of their communications

The Investigatory Powers Tribunal(IPT) is hearing this week a case on the so-called “Wilson Doctrine”. This convention, named after Harold Wilson, states that UK intelligence agencies will not spy on MPs or members of the House of Lords. If they decide to do so for national security reasons, the Prime Minister should warn the Parliament.

Following whistleblower Edward Snowden's revelations, Green Party politicians Caroline Lucas MP, Baroness Jones of Moulsecoomb, and former MP George Galloway believe their communications were intercepted and have brought the case to the IPT. They argue that it is “vital” that “people feel able to communicate freely with their representatives in Parliament”. The Tribunal will have to rule, among other things, if the Wilson Doctrine has force in law.

Documents made public during the hearing already highlights a discrepancy between the government's position on the Doctrine, as presented to the Parliament, and the intelligence agencies' interpretation of it. While the government repeated this week that “obviously, the Wilson doctrine applies to parliamentarians”, a MI6 policy from February 2015 argues that the Wilson doctrine “does not prohibit the interception of Parliamentarians’ communications”.

James Eadi QC told the IPT on Friday, July 24th, that the doctrine “simply cannot work sensibly” with the bulk interception taking place in the UK. He argued that the doctrine does not have force in law, and as such does not impose legal restraints on the agencies.

Private copying deemed unlawful

The private copying exception, which allows a person who legitimately acquired a work protected by copyright to copy it for free for his own private usage, has been declared unlawful this week. The plaintiffs, three music industry trade bodies, successfully argued that they were harmed by this exception.

The initial decision was given on June 19th but the question of whether the Court will refer the case to the European Court of Justice was left open until this week. The European Copyright Directive establishes that a copyright private copying exception legislation must also provide fair compensation for rights holders. The British law didn't provide such a compensation has the British legislator argued that the harm caused to rights holders would be negligible. This argument was rebutted by the Court. It is unclear whether the Government will try to re-instaure a private copying exception. In practice, private copying is widespread and considered legitimate by users.


Reports highlights Pakistan mass surveillance of its citizens, and possibly of worldwide traffic

On July 22nd, Privacy International published a report on communications surveillance in Pakistan. It argues that domestic and international threats to the country have been used by the government to establish surveillances practices “less and less targeted and more widespread against ordinary civilians”. It denounces abuses of power by intelligence agencies, which have spied on opposition politicians and Supreme Court judges. It advises the government to look into these abuses and pass clearer laws, but also to investigate the extent and legality of the UK Government Communications Headquarters' (GHCQ) and the US National Security Agency's (NSA) actions in Pakistan.

Thanks to confidential previously unreleased documents, the reports also reveals that a Pakistani intelligence agency, the Inter-Services Intelligence, sought to tap worldwide internet traffic via underwater cables. It tried to buy technology from an European company allowing it to scoop data in “landing sites” in the country’s port city of Karachi, a major node through which a massive amount of data from Africa, North America, India and Europe transits. Such a system “would rival some of the world’s most powerful surveillance programmes”. Privacy International stated that it is not clear whether Pakistan acquired such a technology.

ORG Media coverage

See ORG Press Coverage for full details.

2015-07- 22 – The Guardian - Police Scotland pushes for centralised CCTV network
Author: Severin Carrell
Summary: Pol Clementsmith quoted on the state of CCTV in Scotland
2015-07-22 – BBC News - CCTV use in Scotland 'may breach privacy laws'
Summary: Pol Clementsmith quoted on the state of CCTV in Scotland
2015-07- 21 – Whir - UK High Court Rules Digital Surveillance Under DRIPA Unlawful
Author: David Hamilton
Summary: Jim Killock quoted on the impact of the judgment declaring DRIPA unlawful

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