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RIP(A) it up and start again

The Protection of Freedoms Bill, which curtails local authorities’ powers to conduct surveillance under RIPA, continues to make its way through Parliament. But, asks Ibrahim Hasan, in light of revelations from the Leveson inquiry into the media, has the government picked a soft target?

The Protection of Freedoms Bill is currently proceeding through the Committee Stage in the House of Lords. Amongst other things, it will make changes to the local authority surveillance regime. But is the Government targeting the wrong party?

When first announcing the Bill in February 2011 Theresa May, the Home Secretary, said: “The first duty of the state is the protection of its citizens, but this should never be an excuse for the government to intrude into peoples' private lives. Snooping on the contents of families' bins and security checking school-run mums are not necessary for public safety and this Bill will bring them to an end. I am bringing common sense back to public protection and freeing people to go about their daily lives without a fear that the state is monitoring them.”

The Bill contains proposals to curtail the powers of local authorities to carry out surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). If passsed in its current form, it  will require local authorities to have all their surveillance activity (for undertaking Directed Surveillance, deploying a Covert Human Intelligence Source (CHIS) and acquiring Communications Data) approved by a magistrate before it is undertaken. This will be in addition to the current system of internal authorisation by a senior officer.

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Many local authorities feel that the changes in this Bill are a disproportionate response to inaccurate media stories about their overzealous use of RIPA. The reality is that most authorities only use their RIPA powers in a handful of cases each year and only when there is no other viable means of investigating serious offences and then in a reasonable and proportionate manner. The latest available annual report by the Office of Surveillance Commissioners (OSC) (2010/2011) states: “Generally speaking, local authorities use RIPA/RIP(S)A powers sparingly with over 50% granting five or fewer directed surveillance authorisations during the reporting period. Some 16% granted none at all.”

There is also concern that, at a time when the phone hacking scandal has shone a spotlight on the murky world of police and tabloid surveillance, the Government is choosing a soft target in local authorities rather than going after the real culprits.

The setting up of the Leveson Inquiry and the inquiry by the House of Commons Select Committee on Culture, Media and Sport meant that at first the primary concern was about allegations of phone hacking by the News of the World. However it quickly transpired that hacking phones was just one part of the unscrupulous journalist’s toolkit. It also included the purchase of information from the police and blagging sensitive personal information from public and private sector organisations.

Allegations have also surfaced that the police have been misusing their powers under RIPA to assist the tabloids to locate the whereabouts of celebrities and other persons of interest. Working with mobile phone companies, the police have the ability to pinpoint a phone by monitoring which signal masts it is using and triangulating its location. This involves the acquisition of “traffic data” under Chapter 2 of Part 1 of RIPA and has to be properly authorised in writing by a senior police officer. The technique is known as “pinging”. It is meant to be used in the most serious cases e.g. kidnap and murder cases to locate the whereabouts of victims and suspects. It is not designed to help journalists locate a celebrity or to track a premiership footballer “playing away from home”.

From the various media reports it seems that the police have a serious case to answer about RIPA misuse. Why were powers which were enacted to assist the police to investigate serious criminal offences being abused for commercial gain? Surely, if the reports are true, there is a stronger case for judicial approval of police RIPA communications data powers than those of local authorities who occasionally use them to obtain the identity of a rogue trader or fly tipper? Could it be time to amend the Bill to include the police in the requirement to seek Magistrates’ approval?

At present Part 2 of RIPA (covert surveillance and CHIS) only applies to public authorities. The tabloids often use questionable covert surveillance tactics which are unregulated. In November 2011 the BBC reported that the News of the World hired an ex-police officer in 2010 to carry out surveillance on two prominent lawyers, Mark Lewis and Charlotte Harris, who were representing phone hacking victims. The investigator is reported to have filmed members of Mr Lewis's family, including his teenage daughter when she was on a shopping trip. These allegations were subsequently confirmed by both lawyers when giving evidence to the Leveson Inquiry.

It is fair to say that the tabloids, by doing covert surveillance, have had more of an impact on individuals’ privacy than local authorities. Currently there is no law, which comprehensively regulates these activities. Some may lead to trespass, harassment or a breach of the Data Protection Act 1998. The government would do more to protect peoples’ civil liberties by turning its attention to media surveillance than local authority surveillance, which is already properly regulated. There is now a very strong case for bringing the media within the scope of the RIPA regime.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk).

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