Wednesday, December 19, 2018

Banning the private stasi

Yesterday's revelations about government use of Thompson and Clark Investigations as a private stasi to spy on and infiltrate activist groups were disturbing, and they raise serious questions about government surveillance. But this isn't just an issue for the government. The use of this sort of spying and surveillance has a chilling effect on our democracy, whether it is conduct by government agencies or private corporations. In it's Review of the Search and Surveillance Act 2012, the Law Commission made a compelling point:

The free expression of opinions and exchange of information is one of the fundamental underpinnings of a democratic society. If members of the public feel their communications and activities are being monitored... they may feel constrained in expressing potentially controversial political, religious or ideological views.

The Law Commission was primarily concerned about state surveillance, but the chilling effect it is concerned about is a result of surveillance itself, not of who is doing it. The Law Commission called for tighter regulation of (state) public surveillance - that is, "public visual surveillance" (monitoring who is coming and going in public places), social media monitoring (both of publicly accessible and semi-private, friends-only material), and "directed surveillance" (targeting people in public places). They justified this on the grounds that "We do not consider the principles in the Privacy Act provide sufficient protection against unjustified public surveillance". But again, the same logic applies to surveillance by private agencies, suggesting that they are in need of regulation too. As for how much regulation, it is axiomatic that private agencies should have far greater limits on their intrusion into people's rights, as they do not serve any public interest. And we already apply this principle: the police can get a warrant for use of surveillance devices, while for private investigators, their use without consent is a crime.

As for what we need to regulate, there are three main areas of concern: public surveillance (as defined above), infiltration and the use of covert information sources, and spying on civil society groups. Infiltration is actually the easy one: because of the deceit, intrusion, and potential for false evidence, the Law Commission recommended state agencies obtain warrants. Applying the principle that private agencies should be subject to tighter constraints than the state on intrusive actions, that suggests it should simply be banned. As for how to do it, the Law Commission suggested a definition of a covert operation (borrowed from the UK Regulation of Investigatory Powers Act) as one where someone "establishes, maintains or uses a relationship with any other person for the covert purpose of obtaining information or providing another person with access to information". It would be relatively simple (regulatory speaking) to establish a Code of Conduct under the Private Security Personnel and Private Investigators Act 2010, saying "a private investigator or private investigator employee shall not..."

Such a prohibition would also forbid using fake profiles to monitor or infiltrate non-public social media information (something the Law Commission also thinks is in need of tighter regulation). But they're also concerned about the potential for monitoring of public information to chill freedom of expression and associated rights, and again, that applies to the private sector. Unfortunately, the Law Commission doesn't make any specific recommendations about where the balance lies, instead recommending a "policy statement" regime setting out rules in the future. But that means that whatever rules are applied, we should apply tighter ones to the private security industry.

The Law Commission is similarly unhelpful about public visual surveillance. But the example of Thompson and Clark's spying on Greenpeace HQ and compiling a map of Greenpeace staff and volunteers with names, addresses and phone numbers, violating the privacy of hundreds of people, suggests we need to do something about it. At present, private investigators have carte blanche to conduct surveillance and use surveillance devices in public places. That needs to change. It is one thing for them to stake out a place as a part of directed surveillance against a particular person, but this is quite different. But it seems difficult to come up with an easy rule to cover this which doesn't also interfere with the functions that we want such companies to be able to perform.

I'm less concerned about directed surveillance because its both less intrusive and also what PIs are frequently employed for. But directed political surveillance is downright creepy and chilling. Which is why we need to ban private investigators from spying on civil society groups. We'd need a definition of such groups, including political parties and unions as well as public protests, and simply prohibit the conducting of surveillance or gathering of information on such bodies or events. That ought to fix it.

Private investigators perform useful functions in uncovering fraud, finding missing people, or gathering evidence on criminal activity. But there's no public benefit whatsoever in allowing them to disrupt our democracy and persecute people for their political views. We can and should protect ourselves from them.