CHAPTER 8: COMPARISONS – OTHER FORMS OF SURVEILLANCE
Other intrusive powers
8.32.
The JCDCDB in 2012 also drew attention, when considering other intrusive
capabilities, to a number of mechanisms by which public authorities may obtain
access to data on the basis of individual suspicion. Suspicious activity reports, arising
out of financial and commercial transactions, are automatically reported to the NCA.
The national fingerprints and DNA databases also contain many millions of entries.37
8.33.
Securing access to this kind of data is relatively remote from the types of intrusion
with which this Report is concerned. However, some parallels arise. For example,
the S and Marper judgment of the ECtHR on DNA retention38 has obvious implications
for the retention of intercepted material and communications data.
8.34.
Otherwise, as set out at 4.27-4.29, use may be made of OSINT, as to which there is
some (although minimal) information in the public domain. Some techniques used by
the private sector to gather information are set out in at 8.65-8.83 below.
Measuring Intrusion
8.35.
Opinions differ as to the relative intrusiveness of these various techniques. Relevant
factors include whether they operate in a public, private or electronic space (which
may affect an individual’s expectations of privacy), whether they involve deception
(CHIS); and their capacity to operate in bulk (CCTV) or only on suspicion (intrusive
and directed surveillance).
8.36.
The levels of authority required before these powers may be exercised imply a broad
parity between:
(a)
interception of communications,
interference; and
intrusive
surveillance
and
(b)
requests for communications data, directed surveillance and CHIS.
property
Recent legal changes prompted by prominent news stories have reflected shifts in the
public perception of how intrusive these powers are. Most notably, the level of
authorisation required for police CHIS and for local authority requests for
communications data have been increased.
8.37.
37
38
39
40
A more formal structure (or “ladder of escalation”) for evaluating the relative
intrusiveness of surveillance methods has been proposed by Professor Ross Bellaby,
acknowledging the influence of Sir Michael Quinlan, Sir David Omand and others.39
Another “matrix” of surveillance technologies has been developed by SURVEILLE, a
project funded by the European Commission.40
JCDCDB Report, p 7.
S and Marper v UK (Application nos. 30562/04 and 30566/04, judgment of 4 December 2008).
R. Bellaby, The Ethics of Intelligence, 2014.
SURVEILLE, Paper Assessing Surveillance in the Context of Preventing a Terrorist Act, (May 2015)
[SURVEILLE Report]. See further 14.44(a) below.
147