Teeth, But a Questionable Appetite: The Information Commissioner's Code of Practice and the Regulation of CCTV Surveillance

Abstract

The Data Protection Act 1998 was not created for the purpose of regulating CCTV surveillance of public places yet, judging by the CCTV Code of Practice issued by the Information Commissioner, provides a detailed legal framework applicable to CCTV and encompasses all aspects of the surveillance process. Nevertheless, the 1998 Act was introduced principally to extend the remit of data protection to include paper records as well as computer records, yet maintaining a distinction between the two on the basis of whether data is processed by automatic or manual means. Exploring the nature of CCTV surveillance, involving interaction between human and machine, this article argues that CCTV surveillance is perhaps best regarded as a hybrid—neither automatic but not entirely manual either. Consequently, it is argued that this is a compromise that does not seem to fit easily under the legislative scheme with potential implications for data subjects.

Notes

1 E Honess and E Charman Closed Circuit Television in Public Places: Its Acceptability and Perceived Effectiveness (London: Home Office, 1992) p 8.

2 M O'Brien ‘The Carcareal Society: invasion or protection’ Prison Service Journal Vol 102, p 36 (1995).

3 Information Commissioner ‘CCTV Code of Practice’, at http://www.informationcommissioner.gov.uk/cms/DocumentUploads/cctvcop1.pdf (last accessed 4 November 2004) p 2.

4 T Murphy ‘Closed circuit television surveillance, privacy and the law’ Unpublished doctoral thesis, University of Ulster 2002. Semi-structured interviews were conducted with the operators and managers of three systems which monitored respectively: city centre streets; local authority property to which the public had access and a busy shopping centre.

5 Section 1.

6 Directive 95/46/EC.

7 Murphy, op cit, note 4, p 20. That CCTV systems process information that can be attributed to a particular individual is amply demonstrated by the field studies conducted for the purposes of previous study, cf. note 4. Although the precise objectives of particular systems differed, as systems of surveillance the identification of individuals was nevertheless an outcome of each. The process of identification may occur using any of five principal methods: the personal knowledge of operators; the use of CCTV in conjunction with the exercise of police powers of stop search and arrest; the recording of images featuring individuals from the same organisation (for example other police officers); the receipt of information from external sources such as traders via radio links and from vehicle registration checks.

8 [2003] EWCA Civ 1746.

9 Ibid.

10 Information Commissioner ‘CCTV Systems and the Data Protection Act 1998. Guidance note on when the Act applies’ (01/02/04) at www.informationcommissioner.gov.uk (last accessed 4 November 2004).

11 Any system with objectives that include the prevention or detection of crime will at some time undoubtedly process data of the type specified in category (g). Data under category (h) is likely to be less common and most applicable to the police who will be responsible for criminal investigations. However, other data controllers may also retain such information, perhaps for the purposes of legal proceedings. In this context the Code of Practice has stated that: ‘This latter bullet point [category (h)] will be particularly significant for those CCTV schemes which are established by retailers in conjunction with the local police force, which use other information to identify known and convicted shoplifters from images, with a view to reducing the amount of organised shoplifting in a retail centre’. Information Commissioner, op cit, note 3, p 26.

12 The question is how accurate or specific does this have to be, for example it may be possible to identify an individual as a white Caucasian, but not to determine whether he/she is English or German? At present it is difficult to accurately determine the standards that the courts might apply, however the view of Lord Williams of Mostyn is perhaps instructive in this respect. Rejecting an amendment to specifically include the word ‘colour’ he stated that: ‘We think that the issue of colour ought to be regarded as, in itself information as to racial or ethnic origin. It is not the same thing, but it does seem to be information as to racial or ethnic origin, which is already within the Bill's definition.’ 586 HL Debs, col CWH18 (23 February 1998). In relation to CCTV it is also a possibility that other aspects of the appearance of an individual (such as clothing) are factors which might, rightly or wrongly be taken into account in this context.

13 Attendance at a meeting organised by, for example, a political party does not necessarily indicate that the attendee is a party member. Nevertheless, attendance will provide some evidence of the views of the individual, especially when placed in the context of his/her behaviour at the meeting (for example heckling or engaging in unlawful acts) as viewed using CCTV cameras. If an individual is carrying a placard or wearing clothing bearing particular images or slogans this may also be indicative.

14 For example the case R v Brentwood Borough Council ex parte Peck, The Times, 18 December 1997, was concerned with the disclosure of a video recording that showed the applicant walking down the High Street, Brentwood with a knife prior to attempting suicide.

15 Section 1(1): ‘Processing, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including (a) organisation, adaptation or alteration of the information or data; (b) retrieval, consultation or use of the information or data; (c) disclosure of the information or data by transmission, dissemination or otherwise making available; or (d) alignment, combination, blocking, erasure or destruction of the information or data.’

16 Information Commissioner, note 3, p 2.

17 C Pounder ‘Data protection in a surveillance society’ CCTV Today Vol 2, No 4, pp 10–11, 1995.

18 586 HL Debs, col CWH5 (23 February 1998). The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn) stated that: ‘… the purpose of this first amendment is to ensure that digital images are caught by the Bill. I hope I can reassure the Committee that the amendment is unnecessary, because such images are already caught by the Bill and, indeed, Amendment No. 1 might in fact reduce the coverage of the Bill.’

19 In Digital Images as Evidence HL 64 (1998) the House of Lords Committee on Science and Technology regarded digital CCTV as an innovative rather than commonplace phenomenon: ‘The potential for cost reduction offered by digital technology suggests that in future many CCTV surveillance systems will adopt this technique’ (para 4.2).

20 A system using frame store technology records a specified number of video frames and then records over them repeatedly in a continuous loop until an alarm signal is received. When this occurs it continues recording for a predetermined number of frames and then stops. The result is that the frames prior to the incident are recorded as well as the incident itself. Typically such technology will enable the operator to pre-programme start and stop times, and will facilitate multi-camera recording if necessary. For further technical information visit http://www.cctv-city.co.uk/ (last accessed 4 November 2004).

21 Such systems operate using a pre-set controller that can accommodate up to 16 pre-set positions for each camera. However, this type of arrangement is appropriate only for areas to which the public have restricted access. Otherwise alarms would be perpetually active as a result of any mundane activity. With regard to town centres a slight modification may be that cameras can be programmed to pan and tilt to pre-set positions simply at pre-set intervals.

22 Section 1(1). It is also possible that if the equipment records the date and time at which each frame was with the result that it is possible to automatically search the recording according to these variables, then such a recording could perhaps satisfy the requirements of categories (a) or (b). The same might also be true if the system is programmed to record from different cameras over a time period and where time lapse is used.

23 586 HL Debs, col CWH5 (22 February 1998).

24 A point alluded to by Viscount Astor who, in response, enquired ‘Does that mean that he and the Data Protection Registrar are now in agreement, as it were, to what constitutes manual records?’ 586 HL Debs, col CWH6 (23 February 1998).

25 The Data Protection Bill [HL]: Bill 158 of 1997–98 HC 48 (1998), p 17.

26 See for example the comments of Lord Williams of Mostyn at the commencement of the second reading of the Bill in the House of Lords. 585 HL Debs, col 436 (2 February 1998).

27 Category (d) effectively incorporates particular information governed by post-1984 legislation into the 1998 framework and is of no relevance to the current discussion.

28 In discussions pertaining to paper-based records it seems to be presumed that such records will only be governed by category (c), never categories (a) or (b). An example is provided in a speech made by the Home Office Minister Lord Williams of Mostyn who, in attempting to alleviate some of the confusion surrounding the likely scope of what has become category (c), at the Second Reading of the Bill, explained that: ‘… we could have extended the scope to cover all paper records. … In the event, we have followed the approach adopted by the Directive … . We believe that this brings in highly structured sets such as card index systems and excludes collections of papers which only incidentally contain information about individuals.’ 585 HL Debs, col 438 (2 February 1998). If data stored on paper will constitute a manual file irrespective of how it was created then if generated by a camera the relevant factor in this context is the medium which is used to store the resultant images. In relation to many systems (with the exception of the growing number using digital technology) this will generally mean videotape.

29 587 HL Debs, col 467-468 (16 March 1998). This statement was quoted as an authoritative statement of the scope of the Act in Freedom of Information—the Continuing Debate HC 61 (1999), p 25. Elaborating on this at the Report Stage, Lord Williams of Mostyn added: ‘An example might be a personnel file with my name on the front. Let us assume that the file contains every piece of paper or other document about me which the personnel section has collected over the course of my career; and those papers are held in the file in date order, with no means of readily identifying specific information about me except by looking at every document. The government's clear intention is that such files should not be caught. We want only those records from which specific information about individuals can be readily extracted. Let us take the case of a personnel file consisting only of information about my sickness record during my career. If that file has my name on the front and is part of a structured set, that file will be caught because the specific information about me, my sickness record, is readily available.’ 587 HL Debs, col 467–468 (16 March 1998).

30 For example, by entering a shop. The physical limitations of the system, combined with the physical characteristics of videotape thus serve to fetter the discretion of operators to select the images which can be processed.

31 The retrieval of particular data from videotape is an inherently time consuming process as revealed by one police constable: ‘For evidence of a serious offence CID will trawl every public building for videos if they get any sort of description (of the culprit). It takes a lot of time but it does no harm and forms another point of contact—but there again it takes us off the street, on Monday I'm going to spend 3 hours watching videos and I'm not even at the stage of collating evidence.’ Murphy, op cit, note 4, p 190.

32 As opposed to the manner in which it may be subsequently used. If the paper record is created in such a manner so as to facilitate intended automatic processing then it will fall under category (b).

33 This is despite the fact that ‘recording’ and ‘obtaining’ are included in the new definition of ‘processing’ under section 1(1).

34 In a relevant filing system as defined in section 1(1).

35 Murphy, op cit, note 4, p 191.

36 Ibid.

37 By contrast the operators of two systems studied which were not operated by police officers indicated that their activities do not lead to anything more than the production of a miscellaneous collection of images on any given videotape. Where any investigation is required, the matter is simply passed to the police: Murphy, op cit, note 4, p 191. The question is what degree of structure is necessary? In one commentary on the new Act it has been speculated that a personnel file relating to a particular individual in which the contents are inserted in date order only may not be data subject to the Act whereas if the file had specialist categories for work performance or health this might not be the case: P Carey Blackstone's Guide to the Data Protection Act 1998 Blackstone, London, 1998, p 8.

38 Op cit, note 8.

39 It is standard practice in two of the systems studied for the operators to make contemporaneous notes for the purposes of subsequent statements or reports. In addition, notes may be made on the basis of footage viewed. If such details were subsequently stored on computer then this would prima facie constitute automatic processing for the purposes of category (a) of section 1(1). Murphy, op cit, note 4, p 191.

40 Or is recorded with the intention that it should be processed in such a form.

41 The alternative would be chaos, as different rules would apply to different data recorded by the same system but using alarms rather than human discretion.

42 Such request must be in writing, must provide sufficient information in order to establish the identity of the person making the request and to locate any relevant data. In addition a small fee (subject to the statutory maximum, currently £10) may be charged, though the Secretary of State may prescribe circumstances in which a fee will not be chargeable. Upon receipt of such a request the data controller has 40 days in which to comply (from the date on which the fee was received).

43 Under section 8 the data controller is required to supply a copy of the data in permanent form unless this is not possible, would involve a disproportionate effort, or the data subject waives this right.

44 This latter point will be less relevant to the CCTV images themselves but demonstrates that it will apply, for example, to records kept which have been derived from CCTV.

45 Section l7 of the Act prohibits the processing of personal data unless the data controller has notified the Information Commissioner. The registrable particulars listed in section 16, in relation to a data controller are: (a) his name and address; (b) the name and address of any representative whom he has nominated for the purposes of the Act; (c) a description of the personal data being or to be processed by or on behalf of the data controller and of the category or categories of data subject to which they relate; (d) a description of the purpose or purposes for which data are being or are to be processed; (e) a description of any recipient or recipients to who the data controller intends or may wish to disclose data; (f) the names, or a description of, any countries or territories outside the European Economic Area to which the data controller directly or indirectly transfers, or intends or may wish directly or indirectly to transfer, the data, and (g) in any case where personal data is also being processed by manual means, a statement of that fact.

46 Under section 21(1) it is an offence to process personal data not subject to an entry in the register, unless notification regulations (if any) specifying to the contrary or the sole purpose of the processing is the maintenance of a public register. Liability is strict. Under section 21(2) failure to notify changes in the registrable particulars is a strict liability offence, however liability may be avoided if the defendant can show that he exercised all due diligence in attempting to comply with the duty.

47 http://www.informationcommissioner.gov.uk/eventual.aspx?id=319 (last accessed 4 November 2004).

48 As well as manual data in general, the principal exemptions relate to: (i) some not for profit organizations; (ii) processing of personal data for personal, family or household affairs (including recreational purposes); (iii) data controllers who only process personal data for the maintenance of a public register; (iv) data controllers who only process personal data for any one or all of the following purposes for their own business: (a) staff administration (b) advertising, marketing and public relations (c) accounts and records; (v) In addition, section 17(3) provides the Secretary of State with a wide power to make notification regulations specifying exemptions from the prohibition on processing without a registry entry where it appears that processing of a particular description is ‘unlikely to prejudice the rights and freedoms of data subjects’.

49 Under section 16, if data is being processed by both automatic and manual means then in making notification of the automatic processing a data controller is however bound to make a statement declaring that such non-notified processing is also taking place. Data controllers may find it more convenient to simply register rather than be subjected to intermittent requests for the same information by particular members of the public to whom they are obliged to provided the same information in any case.

50 However, regarding manual (and any other exempted) data, section 24(4) provides that any person (not just a data subject) may make a written request for the same information as would be required for the registration of automatic processing. This information must be supplied within 21 days free of charge. Failure to comply constitutes an offence, as does failure to notify the Commissioner for registration purposes in relation to automatic processing. In both cases liability is strict though the data controller may be able to establish the defence of due diligence if it can be established that the fault lies with for example an employee who acted contrary to clearly established rules and procedures.

51 Or notification of changes.

52 Section 22(1). Under section 22 (5) and (6) it is a criminal offence to carry on assessable processing after notification is made to the Commissioner unless the Commissioner fails to respond within 28 days or within that period the Commissioner has stated the extent to which the processing is likely or unlikely to comply with the Act. Liability is strict and no defence may be offered.

53 Section 19.

54 Section 42. The Commissioner is not bound to investigate but will consider the substantive merits of the request, any undue delay in making the request and whether the applicant is entitled to require the production of the information in question under section 7. Having made a request a data subject must be informed of whether assessment has been undertaken though the Commissioner is not under an absolute duty to explain the reasons for refusal, but rather, under section 42(4), may do so ‘to the extent that he considers it appropriate’. Essentially the Commissioner has the flexibility to deal with issues of confidentiality, and the parliamentary debate surrounding the Act would seem to indicate that reasons should normally be provided. Lord Williams of Mostyn, 586 HL Debs, col CWH 113 (25 February 1998).

55 Lord Williams of Mostyn, 589 HL Debs, col WA128 (14 May 1998).

56 D Bainbridge Introduction to Computer Law 4th edn, Pearson, Harlow, UK, 2000, p 433. As a result of section 3 of the Human Rights Act 1998 the courts may favour this interpretation.

57 The requirement to inform the data subject (when personal and sensitive personal data are obtained) of: the identity of the data controller (or any nominated representative for the purposes of the Act); the purpose or purposes for which the data are intended to be processed; and any other information which is necessary, having regard to the specific circumstances, to enable the processing to be fair.

58 During the first transitional period eligible manual data were exempt from the Data Protection Principles and Parts II and III (the rights of data subjects and the notification requirements). This was subject to exceptions that are not relevant in the context of CCTV surveillance.

59 Lord Norton, 585 HL Debs, col 456 (2 February 1998).

60 ‘Data protection peril that no one predicted’ The Times (Law), 20 January 2004.

61 See for example: C Norris, J Moran and G Armstrong Surveillance, Closed Circuit Television and Social Control Ashgate, Aldershot, 1998.

62 587 HL Debs, col 470 (16 March 1998).