This subject is currently a hot potato, a VERY hot potato.
There has been much conjecture, anecdotal evidence, fact and fiction spread around Twitter in recent months about Police use of Social Media and the real or potential repercussions of it. Now we have one of own, Constable James Patrick of the Metropolitan Police Service who seems to have upset the Service management and has been served discipline papers for alleged Gross Misconduct.
Let me say now that I have absolutely no idea whether RIPA, or the Regulation of Investigatory Powers Act 2000, has played any part in this process, and the purpose of this blog is not to concentrate on individual, ongoing disciplinary proceedings. My curiosity is roused by the bigger picture and whether the Police Forces of England and Wales are utilising powers vested by RIPA in conducting their disciplinary investigations against serving Police Officers in relation to their use of Social Media.
For the benefit of non-Police readers I will attempt to make some kind of sense out of RIPA for you.
In order to have a ‘good old fashioned look’ at what someone may be up to it may be necessary to undertake some form of Directed Surveillance. This could comprise anything from taking sneaky photographs of them in a street, to following them around for days on end with a full-blown surveillance team. It would also include interception of their telephones, email, internet etc (more on this later).
All of these things are routinely undertaken by specially trained police officers in the course of certain investigations, in order to obtain intelligence or evidence, but they have to be authorised. Dependant upon the level of surveillance and where it is most things are authorised at Inspector or Superintendent level, but some activities require the express authority of the Home Secretary.
Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—
- for the purposes of a specific investigation or a specific operation;
- in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
- otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.
Authorisation of directed surveillance.(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.
A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—
- that the authorisation is necessary on grounds falling within subsection (3); and
- that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. (my italics)
An authorisation is necessary on grounds falling within this subsection if it is necessary—
- in the interests of national security;
- for the purpose of preventing or detecting crime or of preventing disorder;
- in the interests of the economic well-being of the United Kingdom;
- in the interests of public safety;
- for the purpose of protecting public health;
- for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
- for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—
- consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.
By now you’re probably thinking “what on earth has this got to do with Constable Goody tweeting things on his personal Twitter account that his bosses don’t like?” , and it may be reasonable to think that;
All Directed Surveillance has to comply with the rules and satisfy the Surveillance Commissioner, whose job it is to protect the wee folk from an overbearing Big Brother.
And the Surveillance Commissioner got a right Royal strop on earlier this year, positively unhappy with the way some Police Forces were conducting their business.
Way back in the middle of July the Grauniad published an article Surveillance watchdog warns of new threat to privacy
This article refers to the Annual Report of the Surveillance Commissioner, Sir Christopher Rose, whose job it is to oversee the antics of the Police Forces of England and Wales and protect the wee folk from an over-zealous Big Brother.
Its contents, which went largely unreported, are highly significant.
Rose notes that there has been a decline in covert “directed surveillance” of individuals by law enforcement agencies and public authorities. It is his job to monitor such activities which are covered by the Regulation of Investigatory Powers Act 2000 (RIPA). But the police and other authorities are abandoning the practice of such covert “directed surveillance” of individuals, Rose suggests, because they can gather more and more personal information differently. They can do so through “overt” investigations simply by trawling through material readily available on the internet, through social media for example, and not be subjected to any RIPA controls. (my italics)
How do you effectively monitor the activities of such data miners, especially those determined to evade statutory controls? Rose raises issues which should be addressed, not just tossed away in a report rushed out by Downing Street. (my italics)
This raises serious questions. Rose says that his staff are concerned that research using the internet “may meet the criteria of directed surveillance“. In other words, trawling an individual’s social media available on the internet should be subjected to RIPA’s statutory controls. These state that the information should be gathered only to protect national security or prevent crime. (my italics)
If I may quote a chunk of Sir Christopher’s report;
“My Commissioners have expressed concern that some research using the Internet may meet the criteria of directed surveillance. This is particularly true if a profile is built by processing data about a specific individual or group of individuals without their knowledge.
It is inappropriate to define surveillance solely by reference to the device used; the act of surveillance is the primary consideration and this is defined by RIPA (Regulation of Investigatory Powers Act 2000 section 48(2-4) (monitoring, observing listening and recording by or with the assistance of a surveillance device). The Internet is a surveillance device as defined by RIPA section 48(1). Surveillance is covert “if, and only if, it is conducted in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is, or may be taking place.” Knowing that something is capable of happening is not the same as an awareness that it is or may be taking place.” (my underlining)
This got me to to wonder, so I asked 4 Police Forces the following questions;
1) Can you please tell me for the year 2011, how many RIPA
applications were made by members of your Force in relation to
Police Officers’ use of Social Media or e-mail?
2) Can you please tell me for the year 2011 what were the relevant
offences or Discipline Regulations for these applications?
3) For the year 2011 what was the result of these applications? How
many officers were either prosecuted or disciplined?
4) For the year 2011, how many such applications (as above) were
refused and on what grounds?
Four relatively focused questions, not one of which requires the disclosure of anyone’s private, personal information. All is well then, let’s sit back and wait for the replies.
20 Working Days are normally allowed for a Public Authority to respond to a request under the Freedom of Information Act.
On Day 20 I received the following response from 2 of the 4 Police Forces;
The xxxxxxxxxxxx Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:
Section 23(5) Information supplied by, or concerning, certain Security bodies
Section 30(3) Investigations and Proceedings conducted by Public Authorities
Section 31(3) Law Enforcement
Section 40(5) Personal Information
Section 44(2) Information covered by Prohibitions on Disclosure
Sections 44(2), 23(5) and 40(5) are absolute exemptions, which means that the legislators have identified that harm would be caused by release and there is no requirement to consider the public interest test, (except for Section 40(5)).
Sections 30(3) and 31(3) are qualified exemptions and require us to carry out a public interest balancing test before they can be relied upon.
Overall Harm for the Neither Confirm nor Deny (NCND)
The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex piece of legislation to interpret. The RIPA Act is a regulatory framework around a range of investigatory powers to ensure the powers are used lawfully and in a way that is compatible with the European Conviction on Human Rights. It also requires, in particular, those authorising the use of covert techniques to give proper consideration to whether their use is necessary and proportionate. A legislative scrutiny framework already exists for RIPA activity: Police surveillance activity is subject to annual inspection by the Interception of Communications Commissioners Office (IOCCO) and Office of Surveillance Commissioners (OSC). These inspections assess each constabulary’s compliance with the legislation and
a full report is submitted to the Prime Minister containing statistical information.
In order to counter criminal activity it is vital that the police and other agencies have the ability to work together, where necessary covertly, in order to obtain intelligence within current legislative
frameworks to ensure the successful arrest and prosecution of those who commit criminal acts.
The prevention and detection of crime is the foundation upon which policing is built and the police have a clear responsibility to prevent crime and arrest those responsible for committing crime. To do this the police require evidence and that evidence can come from a number of sources, some of which is obtained through covert means.
To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.
Revealing information that specific tactics are used in certain circumstances would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the
identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published and presents a real risk of identifying the
resources available to individual departments to covertly monitor individuals likely to be committing offences under their remit. Disclosure would undermine the partnership approach to law enforcement but also, due to the legal constraints under Chapter 1 of Part 1 of the RIPA legislation, it may actually be a criminal offence to do so (Section 19).
To confirm or deny how many RIPA applications have been made relating to police officer’s use of social media or email would compromise on-going investigations or identify individuals. If a force applied an exemption to the information this would reveal that these policing techniques and investigative activity had taken place. Conversely, by stating ‘no information held’ would highlight to an officer that his conduct is not being investigated and that he is free to continue.
It is important the Police Service discloses information regarding surveillance activity under RIPA where it is appropriate to do so, but an officer’s conduct may be investigated covertly by the force Professional Standards Department (PSD) without the member of staff knowing of its existence. By confirming or denying that RIPA applications have been made would alert an officer that may or may not be involved in the misuse of social media or email, not only that PSD have the ability to ask for RIPA applications in these circumstances, but that they are aware of his misconduct. The officer would then cease his activity and perhaps make attempts to hide or delete the evidence.
Information compiled for the purposes of an investigation, be it a criminal investigation or internal misconduct hearing, may contain information obtained from individuals to assist with an investigation,
which would be in confidence. To disclose investigative information could dissuade people from providing information to the police in future. The public, be they general members of the public or internal police officers or staff, must have confidence that their information is treated sensitively and appropriately. Confirming or denying the information is held could lead to ‘trial by media’ as it is likely to identify any officers that may or may not be involved.
Public Interest Test
Factors favouring confirmation or denial for Section 30
By confirming or denying that any information relevant to the request exists would enable the public to obtain satisfaction that all investigations are conducted appropriately and that their public money is
well spent. Confirming or denying that RIPA is applied to police that misuse social media would increase public scrutiny of police actions and in turn hold the police service to account.
Factors against confirmation or denial for Section 30
By confirming or denying that RIPA applications have been made in instances of police use of social media or email would hinder the prevention or detection of crime and undermine the partnership approach to law enforcement.
Factors favouring confirmation or denial for Section 31
By confirming or denying that RIPA applications have been made in respect of police officers use of social media would enable the public to see where public funds are being spent. Better public awareness may reduce crime or lead to more information from the public.
Factors against confirmation or denial for Section 31
By confirming or denying that any information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime and more crime could be committed.
Section 40(5) Personal Information
The duty to neither confirm or deny under this section of the Act arises where the disclosure of the information into the public domain would contravene any of the data protection principles or Section 10 of the Data Protection Act 1998 or would do so if the exemptions in Section 33A(1) of that Act were disregarded.
Disclosure under Freedom of Information is a release of information to the world in general and not an individual applicant. Therefore, simply confirming or not that such information were held would disclose personal information about individuals.
As such any disclosure that identifies an individual or identifies that an individual has had contact with Dyfed Powys Police or not is exempt and would be a clear breach of principle 1 of the Data Protection Act.
Personal data is defined under Section 1(1)(e) of the Data Protection Act
“… Data which relate to a living individual who can be identified-
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.”
In this case, the confirmation or denial of the existence of information (if any) would breach Principle One of the Data Protection Act (details of which are provided below).
“Personal data shall be processed fairly and lawfully and in particular shall not be processed unless
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data at least one of the conditions in Schedule 3 is also met.”
The Police Service will not divulge whether information is or is not held if to do so would undermine on-going investigations or compromise law enforcement. Whilst there is a public interest in the transparency of policing operations and in this case providing assurance that the police service is appropriately and effectively managing the conduct of police officers, there is a very strong public interest in safeguarding the integrity of police investigations and operations.
There is also no requirement to satisfy any public concern over the legality of police operations and the tactics we may or may not use. The force is already held to account by independent bodies such as The Office of the Surveillance Commissioner and The Interception of Communications Commissioners Office. These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister containing statistical information. Our accountability is therefore not enhanced by confirming or denying that any other information is held.
As much as there is public interest in knowing that policing activity is appropriate and balanced in matters of police officer conduct, this will only be overridden in exceptional circumstances. The points above highlight the merits of neither confirming nor denying the requested data exists. It is appreciated that members of the public will naturally be interested in techniques employed for surveillance. Likewise, we also understand some people believe surveillance (in any form) is used too widely, and therefore an unnecessary intrusion into their privacy. However, taking into account the fact that the Police Service are already scrutinised as detailed above and effective operational law enforcement would be compromised by any disclosure, it is our opinion that for these issues the balance test for confirmation or denial is not made out.
None of the above can be viewed as an inference that any information does or does not exist.
To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies. Really? I don’t remember asking for anything that wasn’t a number. If supplying me with a number will compromise ongoing Police investigations then I’m very sorry that I asked.
By confirming or denying that RIPA applications have been made in instances of police use of social media or email would hinder the prevention or detection of crime and undermine the partnership approach to law enforcement. Really? I’m speechless at that one.
By confirming or denying that any information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime and more crime could be committed. Oh they just get better and better.
Revealing information that specific tactics are used in certain circumstances would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published and presents a real risk of identifying the resources available to individual departments to covertly monitor individuals likely to be committing offences under their remit. I’m pretty sure that they do employ such tactics or they wouldn’t be so keen to neither confirm nor deny that they do.
A large metropolitan Police Force has granted itself a 10 day extension of the 20 day time limit whilst its Senior Management consider its response.
The 4th, a small (ish) rural Force has yet to make any kind of response.
I will, of course, update you when these responses are forthcoming.
I apologise whole-heartedly for the length of this blog, but I hope that you can understand why it is so long, plus it is an important and current topic. However, the big question remains unanswered, is it lawful and/or proportionate to trawl through an officer’s personal Twitter/Facebook account, taking note of the posts and information gleaned within? Or is it unlawful (as authority would never be granted) and completely disproportionate?
I remember my kids watching Trevor and Simon on Saturday morning TV and hearing the immortal line “We don’t do duvets”. Well the Police Service are not supposed to do “Fishing Expeditions” Focused and Targeted, not a Trawl.