The use of technology in surveillance has always drawn media attention and mild public outcry, particularly when the surveillance is no more than curious snooping or something more sinister. Some surveillance technical tools are regulated and of course the very subject of surveillance has its own Government sponsored regulator, the Office of Surveillance Commissioners. However, one covert tool, whilst drawing attention in the judiciary remains specifically unregulated when used in the private sector and continues to be an area of uncertainty, even for those supposedly in the know in both the private and regulatory sector.
I refer to the use and deployment of GPS Electronic Tracking Devices. On 12th April 2016, the Information Commissioner’s Office (ICO) gave a side tackle when in its published report it stated “We have also had reports about the use of surveillance and tracking devices by PIs, and of PIs failing to give individuals access to information held about them. These are actions which may be in breach of the Data Protection Act.” I like to think that in referring to PIs the ICO meant ‘Private Investigators’ and those unscrupulous opportunists masquerading as ‘Professional Investigators’.
The ICO has been aware for some time how the ABI too has been concerned about the possible irresponsible use of tracking and surveillance devices by some uninformed investigative agencies. The ABI, conscious that the use of such surveillance tools are difficult to control, has sought to put clarity on the subject to assist and inform the limited regulated element of the investigative sector. The ICO report suggests the deployment of such devices, are a breach of the Data Protection Act 1998. This is not necessarily so. In circumstances when the deployment of such devices can be justified, are proportionate and the Privacy Impact Assessment is properly thought through and logged, I suggest the ICO would be hard pressed to make a case to prosecute. It is the ABI’s view that whilst such electronic devices and their supporting software may process personal data, providing the processing is carried out in compliance of the Act, there is no law making their use ‘illegal’.
In 2006 the ICO produced two reports entitled ‘What Price Privacy?’ and ‘What Price Privacy Now?’ The reports documented the apparent unlawful trade in personal information, in which ‘Private Investigators’ (an unprotected term not to be confused with the more professionally minded and compliant professionals) were allegedly found to play a significant role. The reports contained a recommendation that the ABI should extend its National Occupational Standard for Investigation to include explicit reference to Section 55 of The Data Protection Act 1998; (Unlawful obtaining etc. of personal data offences), and undertake other specific measures aimed at raising standards among private investigators. This was duly done. In January 2012 the ICO’s written evidence to the Parliamentary Home Affairs Select Committee stated that the ‘ICO would support any industry initiatives aimed at promoting informational best practice amongst investigators’. In the spirit of this statement the ABI has produced a number of Good Practice Policy documents to maintain the highest standards within its membership, a campaign recognized by the exclusive accreditation by the DVLA, exclusive endorsement by The Law Society of England & Wales and exclusive recognition by The Law Society of Scotland.
And so too the ABI has now turned it’s attention to producing a Policy on GPS Electronic Tracking Devices. One of the first confusing hurdles was whether planting a lump of metal on an inanimate object, like a vehicle, constituted processing personal data. Well of course that in itself would probably not but once a living person is added to the mix then the ABI concedes the ICO point that the deployment of such a device with data processing capabilities, as a surveillance tool, may indeed constitute processing personal data within the meaning of the Data Protection Act 1998.
The ABI believes that this policy will give professionally minded and responsible investigators in the private sector a clear understanding of the correct and lawful use and deployment of GPS Electronic Tracking Devices.
The Policy is specifically aimed at ABI members who are bound by the ABI Code of Ethics and Professional Standards and accountable to abide by ABI policy guidelines. This is specifically demonstrated by the ABI’s robust and independently adjudicated discipline process, that could see substantiated evidence of an ABI member breaching any of this policy’s guidelines face expulsion from the ABI. It aims to ensure that before a surveillance team embarks on a surveillance operation and considers deploying a GPS Electronic Tracking Device the team members are properly trained, fully aware and compliant with the regulatory issues in processing personal data and more so when assisted with such a covert tool.
The Policy addresses the implications of The Regulation of Investigative Powers Act 2000, The Data Protection Act 1998, The Police and Criminal Evidence Act 1984 and Article 8 of the European Convention on Human Rights. It addresses the area of Trespass, Stalking and Harassment and in particular the human rights obligations on public authorities found in leading judicial precedents following The Human Rights Act 1998.
The ABI document concludes with an easy do’s and don’ts Policy list and a helpful Privacy Risk Assessment template for case management use and compliance purposes.
For further information please contact the Secretariat: Secretariat@theABI.org.uk - 020 8191 7500