Biometrics Commissioner praises Government on DNA oversight decision

The Government has 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 original plan to move oversight of the police’s use of biometrics appeared late last year in a major Government consultation entitled ‘Data: A New Direction’. Several respondents, including Professor Sampson, informed the Government that, for various reasons, that was a bad idea.

In its formal response to the consultation on this proposal, the Government stated: “In the light of the feedback received 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.”

Sensible decision

Professor Sampson commented: “It’s a sensible decision, as far as it goes, but the Government’s response needs detail on what the plan is going to be for these particular important functions. I will not be in a position to offer any meaningful observations until there are some specifics about what will come next in terms of providing strong, principled and independent oversight in these key areas.”  

Further, Sampson opined: “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.”

Investigatory Powers Commissioner

The Government’s response suggests that moves are afoot to explore whether the existing Investigatory Powers Commissioner could instead take on some of the Biometrics Commissioner’s functions.

On that point, Professor Sampson noted: “As Biometrics Commissioner, I independently oversee the use of investigatory powers involving biometric material, ensuring that 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. 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-plus decisions per month on national security determinations is not yet clear.”

The Government’s policy in this area appears to continue to be one of ‘incremental steps’ designed to simplify regulation in this arena.

“If Parliament decides to move the functions,” continued Professor Sampson, “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 a matter of growing public concern.”  

Embellishing this point, the Commissioner stated: “Almost all of 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 matters, but it would also bring the UK into line with many other countries with whom we share biometrics for law enforcement and national security purposes.”

Removing ‘duplication’

The Government’s consultation response also references the fact that it’s seeking to remove ‘duplication’ between the ICO and the Surveillance Camera Commissioner aspect of Professor Sampson’s dual role.

Responding to this particular point, Professor Sampson 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 the latter as well, although many of the public’s concerns about the expansion in state surveillance are not data protection issues at all.”  

In conclusion, Professor Sampson urged: “The acid test for any framework for the police’s use of biometric and overt surveillance technology will be how far it allows us to know that the technical capabilities (ie what is possible) are only being used for legitimate and authorised purposes (ie what is permissible) and in a way that the affected community is prepared to support (ie what is acceptable).”

Response from the ICO

In essence, the response from Westminster outlines plans to reduce burdens on business by enabling organisations to create flexible and proportionate compliance regimes and includes proposals for improved data sharing practices to support the delivery of public services. It also commits to maintaining the robust standards of data protection crucial to protecting the public.

John Edwards, the UK Information Commissioner, said: “I share and support the ambition of these reforms. I am pleased to see the Government has taken our concerns about independence on board. Data protection law needs to afford people confidence to share their information and use the products and services that power our economy and society. The proposed changes will ensure that my office can continue to operate as a trusted, fair and impartial regulator, and also enable us to be more flexible and target our action in response to the greatest harms.”

Edwards concluded: “We look forward to continuing to work constructively with the Government as the proposals are progressed and will continue to monitor how these reforms are expressed in the Data Reform Bill.”