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One law for the police, and one for everybody else?

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Apparently a PCSO has been found guilty of illegally accessing police databases (the original article seems to have conveniently been removed).

This illegal access occurred over 5 years (which raises the question of why it took so long to catch her), but more importantly happened on 900 separate occasions. In addition she was only fined £500 rather than being handed a prison sentence. Apparently since she did not had the data onto 3rd parties she was not charged with a more serious offense.

A few points come to mind as a result of this:

  • £500 for 900 offenses. That equates to only a 56p fine for each offense. This soft of level of punishment is clearly insufficient.
  • The government appeals lenient sentences in other cases, but rarely if ever appear to do so when it involves the police. Previous emails sent to my MP seems to suggest that the government think that blanket support should be given to the police as they do a difficult job. This may well be the case, but all this attitude achieves is the perpetuation of corruption (institutional corruption?) that gets increasingly worse over time because of the refusal to deal with it.
  • How can it be proven in this case that the data was not handed onto 3rd parties? Even her own solicitor mentions the PCSO’s own ‘dire financial’ circumstances as part of her defense in the original article, and it’s difficult to see why they would do so if the purpose of the data gathering wasn’t financial gain.
  • Why the differentiation in sentencing? Why does it matter whether it was shared or not? Access was illegal, and given the difficulty in really proving that the data was never supplied to 3rd parties surely there should be no difference between the two crimes?
  • And a last point: why was this PCSO allowed access in the first place? Or are they increasingly taking the place of ‘normal’ officers to the point that this access is needed for their job?

I can understand being lenient if the situation isn’t clear; nobody expects either police officers or PCSOs to be 1st class lawyers after all. However the lenient sentencing in cases where there has been a clear cut abuse of access really is impossible to comprehend, at least in terms other than there being one law for them and one for the rest of us.

Allowing people to pay a pittance each time they commit a crime can only encourage the same crime to be committed time and time again. The police need to be whiter than white, not merely the rather dirty and grubby grey that they only seem to manage at the moment.

I emailed my MP (Chris Grayling) to ask him why this situation was allowed to continue (he also happens to be the current justice secretary so I assumed he would be interested in this type of matter). His response was rather brief:

Sentencing is always a matter for the Courts, but there are tough penalties available to Judges handling individual cases if they consider them appropriate in the light of the evidence presented to them.

Which doesn’t say why 1) tough sentences are rarely if ever applied when the police are involved and 2) why the government allows this situation to continue. Tough sentencing may be available to judges but they have to follow sentencing guidelines and laws as laid down by parliament. It seems odd that more isn’t done about this when the government has previously complained about judicial activism at the EU level and has shown a certain willingness to appeal against lenient sentences when it involves members of the public.

Why bother with PCCs?

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By now most people will be familiar with the corruption that goes on within the police, as well as the inability to take account of the needs of the general public in regards to how the police deal with different types of crimes. PCCs – or police and crime commissioners – were introduced to try and rectify this problem and encourage the police to take account of the wishes of the public.

One might expect the PCC to be broadly supportive of the general public and to make an effort to hold the police to account. This is unfortunately not the case if recent events are anything to go by.

One of the regular posters at NoDPI.org recently attended a meeting that allowed the general public to ask the chief constable questions. The PCC was also there. A brief transcript of what transpired can be found here, and a number of quotes are included below.

Safe to say things did not go well. It seemed fairly clear at the outset that things were going to be difficult.

Sue Mountstevens quickly interrupted me, and urged me to be brief.

This line from the article is revealing, since the PCC seems more interested in making life easier for the chief constable rather than making sure he answer the questions put to him.

But what happened next was more disappointing. Far from offering an account, Nick Gargan simply laughed at me. He laughed in my face.

This fundamental lack of respect for a member of the general public is rather revealing, as is the PCC’s apparent complete failure to stop him from showing such contempt to somebody simply asking him a question. Again apparently nothing was done on her part to correct matters.

He quickly composed himself, but then tried to assert that intercepting communications was ‘not a crime’.

Let me repeat that: intercepting communications is not a crime in the chief constable’s opinion. This was rather a surprise given the number of journalists that have already been arrested for such offenses. Perhaps Nick Gargan should have a word with Brooks and Coulson? In any case there was more: the home secretary responded to my questions with the following quote (emphasis added by me):

The Regulation of Investigatory Powers Act 2000 (RIPA) includes offences of unlawful interception – i.e. interception without a warrant or other lawful authority. A person who is found guilty of unlawful interception is liable to imprisonment for a term not exceeding two years or to a fine, or to both.

RIPA also contains a power for the Interception of Communications Commissioner to serve a monetary penalty notice on a person whom he considers has intercepted a communication without lawful authority. Mr Seurre asks whether whether companies are subject to RIPA. Individuals and companies can be prosecuted under the unlawful interception provisions. In the event that an offence has been committed by a private company, an officer of that company may be subject to the sanctions set out above.

If Mr Seurre believes that oan offense has been committed, he should report this to the police. Alternatively he can contact the Interception of Communications Commissioners office at the following email address: info@iocco-uk.info

‘He should report this to the police’. What exactly would be the point of doing this if the police routinely ignore such reports? Surely any effort to do so would be an exercise in futility? Given recent stories about police and statistics I can only assume that this failure to recognise interception of communications as a crime is yet another effort to try and fiddle the numbers.

More worryingly however is the appearance of failure of the PCC to do anything in regards to the chief constable’s unacceptable behaviour and incorrect conclusions. As a result I sent her an email basically asking her why she thought such behaviour was acceptable and what she intended to do to try and mitigate the lack of knowledge within the police force, and also included the advice sent to me from the home office. Her reaction was rather disheartening:

I spoke to your friend and also replied to his email in November 2013, to address his concerns and he may well have already shared this with you directly. Your friend is aware that the Chief Constable gave his response to each person who raised a question and this was also heard by all the audience.

You are very welcome to attend any of the public forums to get a first-hand account of the Constabulary’s response and also my own replies. If you ask a question and then feel that the person who replies acts in a way that brings the Constabulary into disrepute or their conduct is below the professional standards expected then you can make a complaint. If an apology is due then I am keen that it is given as soon as possible and any poor conduct is rectified to improve the quality of service going forward.

If you are unable to attend a Public Forum but still wish to hear and see the event then you may prefer to listen and watch online via the web-stream. Please refer to my website (as below) for more details of my calendar and future events.

No admission – or denial – that he behaved inappropriately. No admission that the chief constable got things wrong or any indication that any measures will be taken to correct matters. Nothing useful at all in fact.

Perhaps it’s because the PCC is responsible for hiring the chief constable, but in my opinion she seems to be more interested in protecting him instead of encouraging him to do this job. At this point it’s difficult to see PCCs as anything more than highly paid PR sock puppets for the police. They certainly don’t seem to be interested in holding the police to account, and personally speaking I find it extremely difficult to see how they serve any useful purpose.

Just why should we be paying for PCCs? What purpose do they serve?

Who regulates the filtering?

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The subject of filtering internet connections by default ‘for the children’ has repeatedly come up over recent months. Like many people I was concerned at the possibility for censorship and abuse. Together with many others I emailed my MP to ask about the filtering (using the extremely convenient writetothem.com website), and my MP was kind enough to forward me a copy of the response that he had received from the DCMS. A copy of that response can be found here.

It would appear that the response consists of… nothing. When you strip out all the meaningless double speak there is nothing left. They acknowledge that respecting rights is a problem yet give no details whatsoever on how those rights will be respected.

This sort of attitude isn’t just a problem for the person sat at their PC trying to access online services. When people think of using the internet they tend to only think of the end user. The end user, however, is only part of the equation. They would have nothing to use if it wasn’t for the people that actually own and run the websites. Those website owners have as much a right to privacy, freedom of expression and freedom of association as anybody else. These are rights guaranteed in the ECHR (see articles 8, 10 and 11) and yet the blunt approach that filtering represents appears to completely ignore these rights. I am not a lawyer, but I’d nevertheless also be curious to know how the lack of any formal appeals procedure to stop incorrectly applied censorship could possibly ever comply with article 13 of the convention.

It’s pretty much guaranteed that even with the best of intentions errors will creep in. We already have the clumsy use of existing laws to block access to such dens of depravity as the Radio Times, not to mention political blogs being blocked by the filtering implemented by mobile companies. The problem of incorrectly applied filtering is already so prevalent that entire organisations exist with the sole aim of dealing with this issue.

It’s already clear that without some form of rigorous oversight that not only will mistakes will be made, but that many of them will be entirely avoidable. People will be filtered out of existence completely unnecessarily when it comes to the British corner of the internet, and even more worryingly will have limited options when it comes to clearing up the mess that should never have happened in the first place.

Take TalkTalk’s approach for example: their ‘notice for website owners‘ consists of the following:

If you have a website and believe it is being blocked incorrectly by HomeSafe™ then please email homesafe.classification@talktalkplc.com, stating as a minimum your responsibility for the website (e.g. you may be the administrator, the site owner, or owner of the business advertised), the full name of the domain or url being blocked, and the category you believe it is being blocked under (e.g. Dating). This feedback will be reviewed by TalkTalk and changes may be made to HomeSafe™ as a result. However, TalkTalk will not reply to these requests nor enter into correspondence.

In other words: we won’t tell you when we filter your site. We won’t talk to you about what has happened or why. You don’t really have any rights to demand anything and tough luck if we decide you stay on the list …Oh, and by the way we want you to comply with these impossible demands too.

After all, if a site has been incorrectly filtered, how on earth are the webmasters supposed to state – ‘as a minimum’ – the category that they believe it has been applied to their website?

I was curious about who was actually responsible for regulating these systems. Cameron’s speech back in July appeared to suggest that OFCOM would be responsible for overseeing this scheme. I duly emailed OFCOM with the following questions:

  1. What right will website owners have to be notified that their website has been filtered?
  2. What sort of right to reply can website operators expect prior to filtering?
  3. What sort of right to compensation can website owners expect when their site has been incorrectly filtered?
  4. What minimum standards will be enforced to ensure that website owners can get their site unfiltered?
  5. In regards to such minimum standards, how long would be the maximum time that an ISP would be expected to deal with any complaint?
  6. What sanctions will ISPs face for incorrectly filtering a site?
  7. Finally what appeals process will exist if an ISP refuses to remove a page?

This was the reply received:

Ofcom has no general role in overseeing the use of network level filters by ISPs. We are in discussions with the Government with a view to undertaking research into the awareness that parents have of the broad range of measures that are available for the purpose of improving the safety of their children when online.  This would include non-technical as well as technical approaches.  We would also be looking at the confidence that parents have in using such measures.  We are discussing with the Government how we might report on the progress being made by the four main ISPs against the voluntary commitments they gave to the Government, which were widely reported in the media.

The specific questions you ask in your email relate to the operation of the filtering systems by the ISPs and as such are best addressed by those ISPs that are deploying them.

So who is responsible for overseeing the use of network filters? Are ISPs really going to be left to do as they see fit with nobody there to make sure they don’t at least try to avoid mistakes?

One other thing with this reply that ought to be noteworthy is the complete lack of any mention of webmasters and how their rights will be considered in all of this, which is odd considering how many livelihoods depend on web based businesses these days, not to mention the large chunk of people’s lives that are conducted online. The last sentence in the reply is also the cause of concern, since it implies that ISPs will be left to regulate themselves. We know from the disaster caused by the banking industry that self-regulation can often end up being a complete train wreck.

In any case the reply seemed to be at odds with the speech, since the speech included this:

That’s why I am asking today for the small companies in the market to adopt this approach too and why I’m asking OFCOM, the industry regulator, to oversee this work, judge how well the ISPs are doing and report back regularly.

I thought maybe that perhaps somebody somewhere had made a mistake, so I asked them again. I got a very similar reply.

So it seems that there will be no meaningful oversight of the filtering. This is the same filtering that was only every proposed because of bullying by the government and their threat of legislation. The government apparently won’t be introducing any checks or balances to make sure that these systems are run responsibly, even though the government is directly responsible for the existence of the filtering through their own actions.

I don’t accept that filtering is a good way to deal with keeping children safe. If we believe something is unsafe or inappropriate for a child to have then we should stop them from having it. We shouldn’t break the system in an attempt to accommodate the children. Parental responsibility rarely seems to get a mention. It should be up to them to decide what their children should and should not be using. They shouldn’t be leaving the job of parenting to mechanisms that can never work properly.

Trying to apply filtering to a family members of different ages and expecting it to work properly is madness. Doing the same to an entire country is sheer insanity.

People never seem to ask just why their children are using certain items. Take smartphones for example: just why are children allowed to use them? They don’t need internet access or cameras to stay in touch with parents, and yet the general public is being told they have to give up their privacy so that a false sense of security can be given to parents. Anybody who thinks sufficient restrictions can be placed on items such as ipads to prevent access to inappropriate material might also want to read this before supporting the idea of replacing real parenting with questionable technical measures. They might also want to consider the fact that a large chunk of such material is created by the children themselves. In such cases filtering is completely pointless since it can’t stop photos being sent from one child to another.

It may also be worth noting that whilst some may regard much of what’s blocked to be distasteful it’s still entirely legal. ISPs have no legal right to inspect legal communications, much less interfere or block them, without consent from the sender as well as the recipient. The sender in this case would be the website owner.

That said, if others insist on implementing such an ineffective method of child protection, then they really ought to at least make sure that the needs of others are taken into account. If the ability of webmasters to communicate with the outside world is going to be interfered with then it ought to be properly controlled, and not just done on a whim.

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