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back to article Police make a mockery of data protection

While the police are very keen to retain as much data on the average citizen as they can "just in case" it becomes useful, they are markedly less happy when the data being collected relates to them. That is the conclusion from two otherwise unrelated stories hitting the headlines this week, as a landmark ruling by the Court of …

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Flame

They don't like it up them!

Nu-Labour has created so many new laws under media pressure and without any thought that it's no wonder that the laws are starting to clash. You have the police fighting DPP, and then the "think of the children" laws clashing with "everyone is a terrorist" ones. I doubt that the Torys would be any better as they are the same crap politicians just with a slightly different method, but the same aim - control the population because we in power know best.

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One rule for the masters...

It seems all most branches of UK government have to do is say that they really, really want to do something and that's justification enough.

Riding roughshod over the few rights that UK subjects are grudgingly allowed (the ones that haven't been opted out of 'to protect us from Brussels interference') is of no consequence.

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Silver badge

We're all criminals now

There's an old adage among doctors (particularly ones who have private practices) that there's no such thing as a "well" patient: only one's who haven't been examined in sufficient detail to reveal all their illnesses.

It seems like the police are taking the same view - that's no-one's innocent (or fully reformed), it's just that they haven't probed deep enough, or far enough back to reveal all our past indiscretions. Now, while that may be a valid basis for a religion, it's no way to run a country. Especially if this presumption of guilt translates into the way the police treat everybody with an air of scorn, superiority and as a potential threat, (For example the recent guy who's front door was smashed down in a police raid - simply because he had air-conditioning: a sure tell-tale of a cannabis factory according to the police. Even worse: their refusal to accept liability for the damage they caused), against which they can commit any outrage with impunity.

No wonder the average member of the public has gone from an innate trust in the "local bobby" to going to great lengths to avoid having anything to do with the police - individually or as a whole. Even being the victim of an attempted burglary is enough to get your dabs and DNA on the police database: for matching against any unsolved past crime and anything that pops up in the future, making everyone who has any dealing at all with the fuzz into an automatic suspect.

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@They don't like it up them!

Torys tend to loosen the grip of government. This can be good, but at the same time they normaly loosen regulation. I don't expect them to overturn lots of laws, but I think alot of stuff will be droped.

I just wish it was a criminal offence to intentionaly miss use the DPA (As it is with allot of other laws)

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Anonymous Coward

and ?

Form has importance.

Scum in youth are usally scum in adult life.

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FAIL

"If the police say, rationally and reasonably"...

If they said that opening every piece of mail would help in the fight against, for example, money laundering (eg cash being sent to avoid banking records), there would be an outcry and they'd be told to get stuffed.

I am sure there are many things that would help the police in their core objectives, as well as all the other ones they seem to have gathered in recent years (i was one once, and support the decent ones when I can) but having spent my entire childhood learning about the intrusive repression of totalitarian states compared to what (we thought) our was, I value what privacy we have left.

Next they'll be accessing all our internet traffic "just in case".

Oh, wait.....

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Big Brother

Don't know about you lot....

But I'm getting out of this country as soon as I can!!!

Anonymous so my visa application doesn't get rejected! ;o)

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FAIL

I expect better...

From the Register. If you are going to report on a story like this, whatever side you intend to take the very elast that can be expected of a technical publication is to understand the working of fundamental law in the relevant area.

The comment about paragraph 31 that it is "an extraordinary passage, which appears to rip the guts out of the Data Protection Act," only serves to perfectly demonstrate why Waller LJ is a judge of the Court of Appeal and the writer of this article is not.

If you had even a basic understanding of the DPA you would know that neither the Act nor the Directive it is based on limits the nature of 'purposes' for processing. This is partly so as to ensure commercial entities freedom to change their nature, but is mainly because the DPA system protects against the problems you seem concerned with through the Data Prrotection Principles in Schedule . These amongst other things require all processing to be fair, lawful, compantible with the purpose for which the data was obtained, and to not require excessive or irrelevant data.

As recognised in the Judgment by pursuing the police for retaining the data because of entirely novel arguments creating different categories of purpose which has no legal basis in any previous statute or case law, the only answer could be a defeat. Now had the Commissioner been sensible enough to pursue the disclosures instead of the retention, which ultimately is what the individuals complained about, then the story might have been different.

Anon because I could do without hate mail for taking an unpopular point. Fail because I do expect better knowledge by El Reg.

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Anonymous Coward

Insert blanks in an arcade machine slot

The background to this was a man, convicted when he was 14 of a petty offence was upset to find that his extended background check showed this as a conviction when he was adult and he was being denied employment (insurance risk is the usual excuse).

WMP was prosecuted as a 15 years old for inserting blanks into the slot of an arcade game. Now he finds this coming up as an adult, SP was prosecuted for a playground fight aged 13..... now she's 41 and it's turning up on background checks...

The data should not have been kept, it was in violation of the 1974 act, yet the police fought to keep it and claimed a ridiculously broad interpretation of the act.

The consequences of this asshole judgements are as follows:

1. By defining what data can be kept as essentially 'any'. They have overturned the Rehabilitation of Offenders Act, and officers will keep 'all' data. Because there is no pressure to delete now. Even a 99p crime as a child they fought to keep, so of course they'll keep all child offences of similar petty nature!

2. There will be more prosecutions of children for petty offences. There was no benefit to prosecuting kids, it made paperwork for the officer, and a quick telling off was usually all that was needed. Now there is a big gain to be had. You get to keep their data, all of it, even DNA samples, the lot. And since ACPO has pressed officers to grab as much data on everyone while they can, it means that officers will be pressured to arrest more kids.

3. Kids cannot defend themselves in court. They are not adults, you are saying that a naughty child cannot be a good adult, and needs to be criminalized as such. This is not true, it overturns the whole purpose of the rehabilitation act.

4. It shows the police don't follow the law and when caught they fight to extend the law to whatever rules they did follow.

5. The Home Office intervention in the case (backing the police), shows that the police lead and the Home Office follows, again.

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Bronze badge

Good Faith

"Or in other words, it does not matter whether data is relevant to the purposes for which an organisation has registered – so long as they believe it is."

In other other words yet another case where PC Plod can do whatever he likes as long as they're acting in "good faith". So tell me again, what's the point of our much vaunted legal system developed over hundreds of years if the police can overturn it at will?

On another issue I really don't believe that the police think that there is any significant keeping data on petty crimes for a century, I think their real objection revolves around the cost of managing differing retention periods for different sorts of offence.

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Black Helicopters

@A/C....Don't know about you lot.... #

no point being A/C the Police have traced you and are currently desperatly trying to link your buying of bag of fertilizer in 2001 to a 2003 Terrorist plot in Durkastan.

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Big Brother

Its just more of the same but it should scare everyone

I'm helping campaign for the release of a close freind of mine who was wrongfully convicted and there is a shocking item that came out during summing up...

Quote from www.justiceforandymartin.org.uk - "When Andy’s barrister pointed out, at the end of the 2-month trial, that there was no corroborative evidence to link Andy to this conspiracy; the judge remarked 'Well of course we know that, but what we are dealing with here is circumstantial evidence – he could have done it!'"

So the inference that you could be guilty (if only someone had actual proof) was sufficient to send my friend to jail.

Further to this, there have been comments made elsewhere that are equally shocking:

"The late Lord Denning said ‘It is better that a few innocent people remain in prison than the integrity of the British legal system be impugned’."

Surely this goes against all that we believe 'British Justice' to uphold. This erosion of rights is getting worse and the Police now feel that they can rightly hold any old crap information about people and then use it to show that a person has a mind for being a criminal is so beyond ludicrous that it tears at the very fabric of our society.

We should all be wary that we are not arrested just for saying that the system has problems. In fact I'll have to into hiding after this - wish me luck.

Please visit http://www.justiceforandymartinorg.uk/ and http://www.mojoscotland.com/ for more information about the mess our politicians and senior police officers are making happen.

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Big Brother

We're

We're fucked - but we knew that already. Just hope they don't come knocking for you.

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Megaphone

First they came

First they came for the terrorists, and I did not speak out—because I was not a terrorist

Then they came for the paedophiles, and I did not speak out—because I was not a paedophile

Then they came for the photographers, and I did not speak out—because I was not a photographer

Then they came for the protesters, and I did not speak out—because I was not a protester.

Then they came for me—and there was no one left to speak out for me.

These stories really need to get mass media attention.

But then you'd have

Then they came for the media, and I did not speak out - because I was not a journalist.

So if the media can't speak out then we need to. Somehow.

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Alert

Heh

and you thought having a monarchical autocratic on the throne was bad. Cromwell we need you now.

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FAIL

Oh well...

I have to say this does not fill me with joy. I received a police caution several years ago for a minor offense, which is now spent under the rehabilitation of offenders act.

This means that I don;t have to declare when applying fof a position unless it is exempt from the act; however I am finding more and more employers these days getting round the act by simply asking for a DP1 form - essentially a copy of information the police hold) which shows not only my spent caution, but on the last one I had done the fact that I had been involved in a 999 call relating to spousal violence (sketchy details on the DP1 but I had in fact called the police because someone was beating their lady up in the street outside my house), been stopped and breathalysed 4 months earlier and had to attend my local station (I had a chest infection and insufficient puff to blow....instant trip to the station) and also that during my time in the army I had taken a drug overdose (I had in fact accidentally taken too many antibiotcs when I misread the instructions, and the good lady insisted I see the doctor about it).

Much of this info was neither relevant nor was it information I would have liked anyone to see, and yet I had to sit down with my employer and explain everything before they would confirm my employment...how embarrasing!

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FAIL

@ Pete 2

AC as this is still an ongoing case:

I have first hand experience of how the police see themselves nowadays.

A friend was having an argument with his girlfriend, the police officer didn't ask if she was alright, he simply put my friend on the ground and crushed his windpipe till he almost blacked out. His brother intervenes and attempts to remove the officer from my friend's windpipe and is arrested for assaulting an officer (later changed to breach of the peace and an £80 fine).

My friend is also arrested for breach of the peace and an £80 fine.

By the time I arrive I witness a police officer strangling my friend, while doing a rather good impression of an american wrestler attempting to break his opponent's spine. Needless to say this matter has been reported.

The police's attitude? They deserved it for being violent offenders. That's the attitude of pretty much every officer in the town, that they can do whatever they like because you must be violent (even when not doing anything, you must be violent because you listen to Iron Maiden and wear leather). I have friends in the force and know people who wish to join, but I no longer trust the police to protect me.

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Thumb Down

What i love about this is

That you get caught peeing in the street as an 18 year old and get a warning this shows up on your CRB check for the rest of your life stoppping you getting any sort of job, turning you to crime. or is my logic backwards once your a blip on this radar your screwed as you have no way of getting of it because lets be honest its always going to be in the fuzz's intrest to keep these records but the most scary is that the polce have shown time and time again that even if your proven to be innocent they'll still keep the records.

Scary stuff if you make a mistake in life.

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@ AC 10:58

Interesting comments however you yourself have failed to take into consideration the fairness aspect of Sch.1.

The word's not in there for the fun of it you know.

Is it really fair that a child's conviction for a minor offence returns to haunt them all through their adulthood. Really?

If so then what you're advocating isn't a judicial sytem based on rehabilitation but one based on life long punishment. I mean if that's what you're advocating then you go right ahead, everyone has a right to their opinion of course.

As far as this judgement goes though (and I've not read the full thing) it certainly appears to indicate that 'fair' is whatever the data processor deems it to be.

'If I believe it's fair then it's fair.'? I refuse to accept that this was the intention or the spirit of the Act as it opens the door to pretty much any processing of data that a controller can think up as long as it stays within the bounds of the law and we all know how flexible that can be in certain hands.

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Megaphone

First They Came..

Aye, well said.

I'd be choosing another way altogether if it was me.

http://www.realityinfo.org/news

Read the first article. Don't ask what "they" can give us, more, ask what we need and how are we going to get it:)

It makes sense.

Peace

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A little harsh?

AC writes: "If you had even a basic understanding of the DPA you would know that neither the Act nor the Directive it is based on limits the nature of 'purposes' for processing."

Hmmm. Guilty as charged - and judging by this case, neither does the Information Commissioner either, who believed the law DID impose some restriction in this way.

To be honest, I did not believe such a restriction to be implicit in the law. However, I have worked with the law, lawyers and the DPA for long enough to know that the English legal system throws up peculiar results from time to time - especially around this area of what is "implied".

Sometimes, as with the Interpretations Act, courts take a very broad brush view, arguing that although the letter of the law may say X, common sense suggests that Y is actually implied. On other occasions, the law is applied according to its strict letter.

I remain perplexed by the status of people found guilty of offences under the Video Recordings Act 1984, given that a court has now ruled that legislation itself unlawful. A strict legal reading would mean cases should now be overturned: but oddly, the CPS says not.

Maybe I am being too sensationalist in talking about this ruling gutting the DPA...but I would say that it is at least an "Emperor's New Clothes" moment. Because for a very long time, most businesses and many individuals acted as though purposes registered placed a limit on purposes that data might be applied to.

I have sat through lengthy sessions with some very expensive lawyers (Masons, in case you are wondering), explaining that there is only one permissible reason for processing outside declared purposes - which is a "blinding flash": a realisation that there was a need for a different purpose to processing.

That said, I was sufficiently aware of the law to notice that purpose is not enshrined quite the same way as the other processing principles and it did occasionally cross my mind that there might be an issue here.

However, as long as lawyers, Information Commissioner and companies all acted as though the law was as I presumed it was...that consensus held. What the Appeal Court has done is to underscore that that never was the law...so we must all think again.

So I do think that is significant.

As for pursuing the disclosures: the judges seemed pretty determined that if individuals had issues there, they should take them up with parliament that created an obligation for disclosure, rather than police or DPA.

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Silver badge

@AC - They have already come for the media

They have already come for the media, but most people didn't notice. Read "Newspeak in the 21st Century" by Cromwell & Edwards. The worst of it is that there aren't (in general) heavy-handed political organisations censoring the media, or even heavy-handed proprietors sacking journalists for not writing what they want. On the whole, it's enough that journalists know perfectly well - whatever they allow themselves to say or write - that they simply will not get promoted unless they say certain things, and avoid saying others. The BBC, The Times, The Guardian, The Independent (funny name though, hahahahahahahahahahahahahahaha), The Telegraph... mostly the same safe recycled PC opinions.

There are a number of honourable exceptions, of which Private Eye is (IMHO) far and away the most distinguished. El Reg has joined the small but mighty band relatively recently, and is performing creditably so far. And then, of course, there are the competent (and outstanding) bloggers.

Private Eye, El Reg, and the bloggers do make some glaring mistakes occasionally, but they're not nearly as bad as they're made to look. Every single error is seized by the establishment and bandied around to show "how unsound those small, crackpot source are". Meanwhile the established media is crawling with careless errors, factual errors, innumeracy... which is rarely pointed out because of the "you watch my back, and I'll watch yours" convention.

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Spent

Incidentally Terry Pratchett in the novel MAKING MONEY asserts that if a police officer so pleases, you can be convicted of assaulting them unless you can prove in your defence that you were not actually there at the time. Definitely one to watch out for. I would propose instead pointing a bar of soap at them and shouting "Are you getting this?!" to suggest that it is a video camera phone, although they may well then prosecute you for photo terrorism, apparently.

I wasn't even sure that data protection legislation applied to the powers that be now or ever, although human rights law sort of does. Regardless of whether they need to record old convictions, and I incline to say yes and to reflect that if I was one of several people suspected of a minor infraction then it would be beneficial if the boys in blue knew that one of the other people under suspicion had done something similar in 1963, and for all that we +now ever since - spent convictions should not be revealed. If that's done by mistake then compensation is due, and if an employer has a way that I don't quite understand to get at computer data that rightfully you have access to but not they, then the employer probably should be prosecuted under data protection and computer misuse laws, whichever are appropriate. Granted, some people don't feel able to refuse records access or sexual favours when demanded by an employer, but it isn't right and it must not be tolerated.

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Anonymous Coward

Hey,does anyone realise that

the system is twisted behind closed doors ?. Of course they rely on 99.999% of people believing that

everything in life is Black and White. Did you know, and I can provide details, that the Met Police (and likely other forces as well) held (and probably still do) secret unilateral meetings with top Judges pertaining to ongoing cases both criminal and civil ?. This was exposed by a firm of solicitors

who act for clients against Police.

The system is corrupt but it is laughed off because that is how they cover it up, making people believe it is unbelievable.

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Anonymous Coward

proportionality means to be in proportion

No the judges are assholes. What they're saying is that 'proportionality' is a one sided test and it isn't. There is an UPSIDE to keeping the data, and a DOWNSIDE.

The police say the purpose is XYZ, and the UPSIDE and DOWNSIDE are judged based on that purpose, they then use it for a whole different set of uses, for which the UPSIDE and DOWNSIDE proportionality tests are completely different.

Use it for XYZ and it was proportionate, use it for XYZW and it is not, because the downside of W kills the upside of XYZ.

As soon as the second use came into effect, so they were bound to reexamine whether the data was being proportionately kept. What the police did was keep it for XYZ, judge the keeping for XYZ, but use it for XYZW.

It isn't proportionately kept for XYZ even. The judge simply skimmed over that, suggesting that the police judgement on that trumps all. Rubbish it does not, the police are not the final arbiters of the laws. This is the most dangerous part of their ruling in my opinion, this guts the DPA.

What the judges did was to use the detail of the law to deny the person their rights. It is a bad legal judgement, not a good legal judgement that happens to have a bad outcome that needs to be fixed.

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Anonymous Coward

So what happens now

A shop keeps the CCTV footage of it's changing rooms for the stated purpose of X.

X) We keep these in-case the police want it for terrorist detection purposes.

But they use it for Y.

Y) We made voyeur tapes for our friends of young girls changing clothes.

Is it proportionate to keep the tapes for purposes XY? No. Is it proportionate to keep it for the purpose of X? The judge says, that's up to the shop security man to decide. Can the DPA consider whether Y is allowed? Nope, because according to the judges, we have to ignore the downside of actual uses, and can only consider the upset of stated uses. And stated use was recorded when the decision to keep was originally made.

I think that the judges never considered that the actual use may be a negative when considering proportionate data retention, and ignored that retention is ONGOING, not a thing that happens in a snapshot of time.

This is a bad judgement at all levels. And since it involves politics and the police, it will stand and UK will be the loser.

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Alert

well i never.....

fancy that!....if we all lived on a island!

we had a marxist liberal government in power to what now seems like too long

and we now living in a "POLICE STATE" whereby we cannot even leave unless...

we swim for it.... (hmmm 21miles at 2'C across 2 busy shipping lanes is a bit of a bugger.)

the Civil State Guards/Goons at the exit points get to decide if were not a threat to them and ignore us(for now)until we make the mistake of coming back (and then pounce and strip search us and threaten to (effectivly) steal our cars from us (legaly under civil law)...

hmmm why not just change the damned national flag whilst your at it and force everyone to carry ID cards as well and then listen into all conversations everyone has in thier own home and at work... (including those of people walking down the street)

hmm reminds me of a soon to be banned book, oh yeah 1984!

looks like im gonna flog all my stuff and move to east germany or CIS where they know first hand how not to turn thier country into a police state of any colour!

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Pint

LAME attempt.

There is not a judge in the world who could compel me to hand over any pgp keys to my encrypted data for any reason whatsoever.

20 years pass and durring that time they finally hacked via brute force method and get to my files and all they find are pictures of people with their middle finger pointing up at the person viewing the images...

I will die to my grave and not hand over anything and that is my PERSONAL RIGHT and no law of any GOVT or relegion could compel me to hand anything over and I would conviently FORGET my pass phrase. I hope this does happen and when they do crack/brute force into my data I will have the biggest class action on their ass their grand children will be in the poor house.

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Headmaster

didnt the court read the VERY STRICT EU directives on data retention then!

si tit seems the court didnt bother to read the EU directives on data retention then!

or are aware the Uk are already under EU investigation for not sticking to the clearly layed out EU directives as per the laws they signed up to uphold etc....

vivian and her department will be very interested in all this, im sure..

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Headmaster

reply to John Ozimek

I should apologise i was a little harsh in my post at 10:58... had yet to have breakfast by that point. But I stand by the points I made generally, but to say you lacked a basic understanding was wrong and I apologise for it.

The real issue here is that both the Act and the Directive are horrifically complicated and difficult to understand pieces of legislation. This is why there is so much confusion about both how the scheme works and what it means. A former job of mine required me to become intimately acquainted with it all, it took a good six months so I know how tough it can be to get your head around. However the IC and his staff have no excuse and really should be much more expert in this field than they ever seem to be. This new one is settling in but I hope he turns out much better than the last one. The previous holder was only happy to chase little guys and gave all the big boys like the construction firms and the banks and the government a free ride (see the enforcement record on their website).

The Video Recordings Act issue is a bizzarre one but is a criminal/admin law issue so outside my limited knowledge. But I dont have that much sympathy as those people knowingly did the act, it's just a technical oversight that created the uncertainty. Their criminal intent and the actions they did in no way changed. From an ethical/moral point of view nothing changed so I wont lose sleep, even if it is an intellectual puzzle.

I am amazed and worried that such high level lawyers were promoting that line on 'purposes'. The Act, in this one respect at least, is pretty clear. As is the Directive. If you look at the ICO guidance that even says that your registration with them as a data controller does not have to "comprehensively" cover every processing operation you undertake. Also if you look at the guidance of the ICO and the European equivalent bodies you will see that the only limit on processing is that "further processing cannot be done for purposes incompatible with the original purpose the data was collected for". This is consistently given quite a broad meaning be it in the UK or in other countries covered by the Directive such as France and Italy. I have worked with a number of medium to big organisations here and I have never come across the view you describe, which I guess just goes to show how fiendishly difficult to understand the law is. Also if you go through the whole decision you will see the ICO didnt even argue the version you describe (i.e. the purposes the data was used for were different to those notified in the registration).Instead what they tried to say was that even if you did notify the purpose, they could get to decide which purposes they thought were acceptable. This was an attempt at a power grab with no basis in law.

If the cops used the data in an incompatible way, so say the data was sent to vigilante groups who would use it to commit crimes of revenge. This would clearly be incompatible and the DPA prevents that processing. Equally in the scenario described by another poster about the changing room cameras, using the data for voyeurism is clearly unfair and probably unlawful under other legislation and so again the DPA would prohibit all this.

As for fairness generally it is important I think that these cases are about actual criminal convictions or formal admissions of guilt. This isnt intelligence, speculation or rumour. A conviction is a fact. Someone who has a record shouldnt benefit from the big discount in sentence that first time offenders get twice. I think we can all agree that isnt fair. However whether a Dr needs to know a potential receptionist once was drunk and disorderly is probably unneccesary. The problem here isnt the retention (because the courts should know) but the disclosure. You are right about the judges saying that parliament should look at the legislation, but they made no ruling about the application of the data protection principles to disclosure so its still a possibility. perhaps.

ac because as before. Pedant because i realise i probably am in this field even though I thankfully have nothing to do with it any more in my job.

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Anonymous Coward

Be nice if there was a resistance

network. It is actually quite an interesting technical challenge, how to actually create a resistance network in this day and age.

Certainly we have the tools, but the iron fist, and jack boot of oppression is everywhere throughout society.

The facade of pseudo democracy is crumbling everyday, as we hurtle into a police state of beyond communist or nazi proportions.

The bad guys are in positions of power, and they are wielding it callously and with disregard to the individual or personal freedoms, only using it immorally to cement their control ever further.

We are all like puppets that dance to the tune of the puppet masters, who are themselves cloistered in their over sized and over opulent cages built from the sweat and tears of the oppressed masses.

Will anyone do anything, nahhh, we are all being drip fed mass marketed, opium laced entertainment to be bothered to actually make a stand.

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in fact - an impeccable judgement

"In an extraordinary passage (s31), which appears to rip the guts out of the Data Protection Act ... " ... "Or in other words, it does not matter whether data is relevant to the purposes for which an organisation has registered – so long as they believe it is."

This is not a fair conclusion, nor is the cited passage "extraordinary". The judgement of Waller LJ is impeccably correct. Provided the purpose is lawful and declared, it can be any conceivable purpose and may be extended to include purposes "compatible" with the primary purpose even after personal data have been acquired. There is indeed an obligation to amend the registration to include any new purposes, but that is clearly not the issue here.

The DPA is not good law, but it is what we have, and given the law as it stands there is no "mockery" here. We might indeed need a better DPA, but that's a completely different matter.

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