Independent study unearths “worrying vacuum” in surveillance camera plans

Authors of the independent study warn that plans to abolish and not replace existing safeguards in this crucial area will leave the UK without proper oversight at a time when advances in Artificial Intelligence and other technologies mean they are needed now more than ever before.

The document analyses in some detail the likely effect of abolishing the roles of the Biometrics and Surveillance Camera Commissioner and the requirement for the Government to publish a Surveillance Camera Code of Practice.

At present, the Biometrics and Surveillance Camera Commissioner is responsible for overseeing police use of DNA and fingerprints in England and Wales (and in Scotland and Northern Ireland for national security purposes), and also for encouraging the proper use of public space surveillance cameras. However, both roles will be revoked if, as expected, the Government’s Data Protection and Digital Information Bill becomes law in Spring 2024.

The 67-page report, commissioned by the Biometrics and Surveillance Camera Commissioner in the wake of discussions with the Home Office, recognises that the Government has made arrangements for the transfer and continuation of the Biometrics and Surveillance Camera Commissioner’s quasi-judicial functions in relation to deciding police applications to retain DNA profiles and fingerprints of people arrested, but not convicted of serious crimes and also reviewing National Security Determinations, which allow the police to keep biometrics on national security grounds.

However, the report also identifies significant areas where the Government has made no specific plans to retain other Biometrics and Surveillance Camera Commissioner oversight functions, including:

*reviewing police handling of DNA samples, DNA profiles and fingerprints

*maintaining an up-to-date Surveillance Camera Code of Practice with standards and guidance for practitioners and encouraging compliance with that Code

*setting out technical and governance matters for most public body surveillance systems, including how to approach evolving technology including AI-driven systems such as facial recognition technology

*providing guidance on technical and procurement matters to ensure that future surveillance systems are of the right standard and purchased from reliable suppliers

*providing reports to the Home Secretary and Parliament about public surveillance and biometrics matters

Retrograde step

The loss of the Surveillance Camera Code of Practice is identified as a particularly retrograde step with research for the report showing that the Code is widely valued and respected among security and surveillance practitioners.

Professor Fraser Sampson, the Biometrics and Surveillance Camera Commissioner, completed his time in post on 31 October.

Commenting on the report, Professor Sampson stated: “After receiving this report, I’m more concerned than ever that, unless the Government acts soon, there will be a worrying vacuum in our arrangements for overseeing and regulating these crucial areas of public life at a juncture when society needs those safeguards more than ever.”

He continued: “The lack of attention being paid to these important matters at such a crucial time is shocking, while destruction of the Surveillance Camera Code of Practice that we’ve all been using successfully for over a decade is tantamount to vandalism.”

According to Sampson, there is no question that AI-driven biometric surveillance can be intrusive and that the line between what’s private and public surveillance is becoming increasingly blurred. “The technology is among us already and the speed of change is dizzying, with powerful capabilities evolving and combining in novel and challenging ways.”

Further, Sampson stated: “What I think of the decision to abolish the roles and the Office of the Biometrics and Surveillance Camera Commissioner is neither here nor there. All that really matters is that we don’t simply junk the protection those roles have provided and instead find a way to retain the functions that this report clearly shows are still needed.”

Sensible grip

In an impassioned polemic, Professor Sampson went on to assert: “If we want to properly protect the privacy and rights of our citizens as well as realise the potential benefits of these types of technology now and into the future, what we need is for Government to take a sensible grip of it in terms of oversight and regulation. Unfortunately, the opposite is happening and we are loosening the limited controls that we do have. It’s clearly in the public interest that the Government uses the little time it has left to make sure it plugs the alarming gaps that will be left by the destruction of the Office of the Biometrics and Surveillance Camera Commissioner and its functions.”

The planned loss of the Surveillance Camera Code of Practice is, in Professor Sampson’s view, a good example of what will be lost if nothing is done. “It’s the only legal instrument we have in this country that specifically governs public space surveillance. It’s widely respected by the police, local authorities and the surveillance industry in general. It’s one of those things that would have to be invented if it didn’t already exist, so it seems absolutely senseless to destroy it now, scrapping the years of hard work it took to be established.”

Police and academic opinion

Some senior police officers and academics are also concerned with the dangers of treating public space surveillance solely as a data protection issue.

Assistant Chief Constable Jenny Gilmer of South Wales Police, who’s also the National Police Chiefs’ Council’s lead on CCTV, explained: “The Information Commissioner’s Office is concerned with the output from this industry. When you look at the civil liberties side of the equation, regardless of the fact that we’re producing video footage of people walking down the street, it’s actually the whole process of being able to create that information in the first place. It’s the issue that we actually have people sat there physically watching these other people walking around going about their business. That’s what we really have to control very securely because, obviously, within policing, we have to have directed surveillance authorities and other authorities with regards to being able to look at somebody. The control over the operators and local authority systems, etc and the CCTV consultants that needed to be really well controlled.”

Lorna Woods, Professor of Internet Law at Essex University, explained: “Often, surveillance technologies can operate in such a way that they may not raise significant or serious data protection concerns. Data protection is about how data processing happens. It doesn’t really look into the acceptability of the purposes, whereas surveillance is recognising that the state has power. In using that power on all citizens, there’s a risk that this power can be abused. When you’re talking surveillance, you have to justify why you’re doing it in a way you don’t when you’re talking about data protection.”

The report’s authors, namely respected surveillance experts Professor Pete Fussey and Professor William Webster, also provide a detailed analysis of Government claims that non-judicial functions of the Biometrics and Surveillance Camera Commissioner are duplicated elsewhere and therefore do not need to be specifically replaced when the role disappears.

Limiting recognition

They conclude that “none of these arguments bear robust scrutiny” and note particularly that the claim that the Information Commissioner’s Office will unproblematically take on many Biometric and Surveillance Camera Commissioner functions mistakes surveillance as a purely data protection matter and thereby “limits recognition of potential surveillance-related harms.”

The authors also take particular issue with the timing of the planned changes, noting that: “The current moment is a time of accelerated innovation in the scale and capability of surveillance technology. This is particularly heralded by advancements in biometric surveillance. Concerns have simultaneously arisen over surveillance technologies (and AI in general), to the extent that they’ve now become mainstream issues. These issues are not going to go away.”

The authors conclude: “Additional to this are heightened challenges for policing agencies and other public bodies when it comes to regaining public trust and confidence. Considering these issues together raises questions over the added impact of removing oversight at this specific time. Debates around surveillance are often – and unnecessarily – polarised and divisive. Rolling back oversight at this time is highly likely to split the debate still further, making it more challenging for surveillance users to gain trust, legitimacy and support within the communities they aspire to serve.”