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Scotland ‘sleepwalking’ to mass surveillance with DPDI Bill

The independent checks and balances over biometrics and biometric-enabled surveillance must be strengthened to prevent Scotland from sliding into a surveillance state along with the rest of the UK

Scotland risks “sleepwalking” into a surveillance state that places every citizen in a permanent digital line-up if it does not deviate from the UK government’s data reform plans in 2024, according to the biometrics watchdog.

The Scottish biometrics commissioner, Brian Plastow, has blasted the UK government’s plans to abolish the dual biometric and surveillance camera commissioner role in England and Wales while it simultaneously works to open up sensitive databases to facial recognition and other artificial intelligence (AI)-powered systems.

Plastow added this combination of measures would further reduce independent oversight in what is already “a ‘Biometric Wild West’ where police forces are doing whatever they want”.

Designed in close collaboration with technology businesses, the government’s forthcoming Data Protection and Digital Information (DPDI) Bill is set to replace the UK’s current Data Protection Act, and is currently at committee stage in the House of Lords following its third reading in the House of Commons.

Under the DPDI Bill, some of the functions of the biometrics commissioner role are due to be subsumed by the investigatory powers commissioner, while the surveillance camera role will be jettisoned altogether and even remove the need for the government to publish a “surveillance camera code of practice”.

“The rationale for doing so is not properly explained, however, the policy intention is to ‘simplify’ oversight regimes and seems predicated on the erroneous assumption that police use of biometrics and biometric-enabled surveillance is simply a question of ensuring that such data is protected,” wrote Plastow in an opinion piece published on 8 January 2024.

“Consequently, the bill assumes that questions of the lawfulness of the acquisition, retention, use, and destruction of biometric data by the police … [are] no longer important enough to benefit from independent oversight.”

Plastow added that abolishing the biometrics commissioner role in England and Wales would give police forces “carte blanche to do whatever they like in the biometrics space, whether that be the chilling effect of rolling out mass public space surveillance, or indeed transgressing any other ethical boundaries”.

He also said the government was using “moral panic” around, for example, migration and shoplifting to justify greater levels of surveillance, and that his fears around bulk surveillance have crystallised in recent months due to the actions of government ministers.

Similar concerns about declining oversight at a time of increasing surveillance have been expressed by the former biometrics and surveillance camera commissioner for England and Wales, Fraser Sampson, who warned in November 2023 that there are real dangers of the UK slipping into an “all-encompassing” surveillance state if concerns about powerful biometric technologies aren’t heeded.

Both Sampson and Plastow have long been critics of the government’s data reform proposals, generally arguing that they would further reduce oversight in an already patchy regulatory framework.

Democratic backsliding

Tracing the trajectory of the biometrics and surveillance commissioner roles – which were introduced as separate entities via the Protection of Freedoms Act in 2012 before being combined into a dual role held by one person in 2021 – Plastow highlighted the importance of how successive post holders have expressed concerns around how UK police store and process biometric data.  

Most notably, each of the three previous biometrics commissioners have warned about the ongoing unlawful retention of millions of custody images in the Police National Database, despite a 2012 High Court ruling ordering their destruction.

“Whilst the role of independent regulators is primarily to support and promote, sometimes it also requires uncomfortable truths to be exposed, even when those truths may not be politically expedient,” he said.

“One way to respond to such discomfort is through backsliding and disempowerment. In the case of independent oversight over biometrics and mass public space surveillance in England and Wales, this is exactly what the UK government are in the process of doing.”

Noting the bill is part of a wider process of “democratic backsliding” – whereby the government is intentionally removing independent checks and balances on its exercise power – Plastow argued there has been a breakdown in the norms of political behaviour and standards; a concerted effort to disempower the courts, the legislature and regulators; and a notable reduction in civil liberties as a result of the “technological means” available to police for surveillance purposes.

Commenting on police having millions of custody, driving licence and (in specific circumstances) passport images in their reach, Plastow also warned against the “routine bulk wash of the images of innocent citizens against images derived from the scene of a minor crime”, which he said “would place citizens in a permanent police ‘digital line-up’ and would be a disproportionate breach of privacy”.

He added that his fears of bulk surveillance were “crystallised” in October 2023, when policing minister Chris Philp said police forces should be able to access the UK’s passport database to enhance their facial recognition capabilities to help catch shoplifters and other criminals.

“In this example of backsliding, the UK government used the moral panic around retail crime as the ‘problem’ that requires to be ‘controlled’ solely through the panacea of facial recognition technology, and with no acknowledgment that the underlying problem is at least in part fuelled by matters within the responsibility of government, including a poverty crisis,” he wrote.

“We may be rapidly approaching an age of little or no privacy, where law-abiding citizens may always be open to intrusive and unnecessary surveillance by the state”
Brian Plastow, Scottish biometrics commissioner

According to the 2021 census, just over 86% of the British public hold at least one passport.

Plastow added that while the Home Office has suggested that there were no current plans to give police automatic access to UK passport and UK driving licence images for facial recognition purposes, this assurance has been directly contradicted by Philp’s statement.

Plastow said at the time it was an “egregious proposal” to link the UK’s passport database with facial recognition systems, adding the move would be “unethical and potentially unlawful”.

“The Home Office also has a history of introducing technologies without public announcement or consultation. The introduction of the Facial Search capability within the UK Police National Database being just one such example. Accordingly, any such assurances should be viewed with caution,” he wrote in his opinion piece.

“Through sophistry and stealth, we may be rapidly approaching an age of little or no privacy, where law-abiding citizens, including the holders of a UK passport or UK photographic driving licence, may always be open to intrusive and unnecessary surveillance by the state. Those who may not care about such developments because they ‘have nothing to hide’ are missing the point completely.”

In December 2023, Lords also expressed concerns about the potential presented by facial recognition technologies down the line, noting it would be entirely possible to, for example, connect a network of cameras to the software so it can search through thousands of faces simultaneously across a city.

Karen Yeung, an interdisciplinary professorial fellow in law, ethics and informatics at Birmingham Law School, told Lords it was already possible on a technical level, due to the pre-existing surveillance camera infrastructure in places like London, and that it would only require a high-quality internet connection to do so.

“We are moving from the equivalent of line fishing to deep ocean trawling,” Yeung added. “It’s a very powerful technology. The capacity to scale up is readily malleable once the infrastructure is in place. You can see the attractions for control within that infrastructure.”

Met Police director of intelligence Lindsey Chiswick said any future “dystopian” scenarios like this could be avoided by sticking closely to the principles of proportionality and necessity, noting that even if such a feat was technically possible, it would still have to meet this legal test.

She also noted a number of practical challenges with a network of live facial recognition-enabled cameras, such as the high angles of existing CCTV cameras and the lack of manpower available to go through the volume of material that would be captured by such a system.

For Plastow, while the UK government is “backsliding” in its removal of checks and balances, Scottish ministers have an opportunity to do the inverse.

“This could include expanding the functions of the Scottish biometrics commissioner and the protections of the statutory Code of Practice to other areas of criminal justice where biometrics are collected under devolved powers, including in pursuit of a new national public space surveillance strategy for Scotland,” he said.

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