A new Police, Crime, Sentencing and Courts bill, which will give police forces extensive powers when searching digital devices, has been heavily criticised by privacy advocacy groups for being overly intrusive.
Big Brother Watch has expressed concerns over clauses in the bill regarding digital extraction that could roll back their campaign against so-called 'digital strip searches', with victims likely to encounter law enforcement practices deemed intrusive and unnecessary.
The group pointed to examples of police investigations using digital strip searches when processing rape and sexual assault cases, a process withdrawn last year as the ICO ruled that they were not fit for purpose. It was found that rape investigations were being systematically dropped after victims refused to hand over their mobile phones for analysis.
Dr. Ksenia Bakina, legal officer at Privacy International, told IT Pro, that digital strip searches have never gone away.
“They have continued to be conducted by the police without any specific legal basis, guidance or oversight mechanisms. Our complaint to the ICO in 2018 highlighted all of these issues and led to a critical ICO report, which was published in June 2020.”
Privacy International outlined how the bill is a legislative response to the ICO’s report which was highly critical of the police use of mobile phone extraction technologies.
Bakina said that it aims to address their complaint and introduce a new statutory power, potentially reforming Chapter 3 of the Police, Crime, Sentencing and Courts Bill - the part that deals with the extraction of information from electronic devices.
“We believe that the proposed legislation fails to safeguard individuals' data and privacy rights when police collect and analyse their phones,” she said.
Bakina underlined that the proposed legislation continues to rely on the “consent” of victims and witnesses when collecting their devices and extracting their data, even though this is not appropriate.
“It is questionable whether victims and witnesses are ever able to 'voluntarily' hand over their devices and agree to extraction of data in light of the inherent power imbalance between them and police officers. Individuals may simply fear that if they don't hand over their devices, their claims will not be taken forward and investigated,” stated Bakina.
She also highlighted that the bill doesn’t permit for a withdrawal of consent once it’s been granted and, crucially, the bill fails to encourage police and others to only extract data that is needed for the investigation.
“This is despite being subject to heavy criticism from the ICO that the police have been simply grabbing all the data from devices and going on fishing expeditions with it,” she said.
Bakina added there is also a complete lack of any redress mechanisms provided in the bill, adding she believes that Chapter 3 of the bill must be substantially amended. “We are also calling for a public consultation on the relevant Code of Practice,” she said.
The bill is currently in the House of Commons at the committee stage but still needs to pass through a third reading before going to the House of Lords for final amendments.
In February, the Home Office admitted 15,000 police records had been accidentally wiped from the Police National Computer. A total of 209,550 offence records that related to 112,697 individuals were deleted from the computer. The incident was attributed to human error and a coding issue and the government has appointed a former police commissioner to fully investigate the mishap.
