Tracking and the law

Having attended the WAPI Seminar on Saturday 19th November 2011, I was blown away by the second speaker Mr David Swarbrick’s presentation on Hacking, Blagging, Bugging & Tracking.  The presentation was a 3 hour affair and it was heavy going at times.

I want to focus on the tracking part of the presentation.

It is quite clear that if you combine client instructions (written or digitally transmitted) that identify a person and a vehicle and then you deploy any type of tracker, the information gathered by the tracker becomes personal data as defined by the Data Protection Act 1998.

The document “What is personal data? – A quick reference guide” published by the ICO http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/160408_v1.0_determining_what_is_personal_data_-_quick_reference_guide.pdf makes clear that data that identifies a living individual is personal data.

  • Can a living individual be identified from the data, or, from the data and other information in your possession, or likely to come into your possession? If yes then its personal data.

Identifiability – An individual is ‘identified’ if you have distinguished that individual from other members of a group. In most cases an individual’s name together with some other information will be sufficient to identify them. Simply because you do not know the name of an individual does not mean you cannot identify that individual. The starting point might be to look at what means are available to identify an individual and the extent to which such means are readily available to you.

NOTE: It is clear that a client’s instructions will identify the subject of enquiry.

  • Does the data ‘relate to’ the identifiable living individual, whether in personal or family life, business or profession?

Meaning of ‘relates to’ – Data which identifies an individual, even without a name associated with it, may be personal data where it is processed to learn or record something about that individual, or where the processing of that information has an impact upon that individual. Therefore, data may ‘relate to’ an individual in several different ways.

  • Is the data ‘obviously about’ a particular individual?

Data ‘obviously about’ an individual will include his medical history, criminal record, record of his work or his achievements in a sporting activity. Data that is not ‘obviously about’ a particular individual may include information about his activities. Data such as personal bank statements or itemised telephone bills will be personal data about the individual operating the account or contracting for telephone services. Where data is not ‘obviously about’ an identifiable individual it may be helpful to consider whether the data is being processed, or could easily be processed, to learn, record or decide something about an identifiable individual. Information may be personal data where the aim, or an incidental consequence, of the processing, is that you learn or record something about an identifiable individual, or the processing could have an impact on, or affect, an identifiable individual.

NOTE: Data from a Tracker would be to identify the individual or his activities.  It is therefore personal data within the meaning of the DPA.

ARE WE ALLOWED TO GATHER PERSONAL DATA?

All private investigators or any individual who wishes to gather personal data MUST BE registered with the ICO and have a DPA number.  It is a criminal offense to process data and not have a DPA number.

WHAT OTHER LAWS MIGHT WE BREAK BY TRACKING CARS?

Trespass: It may be a civil trespass to deploy a tracker onto a car not belonging to your client or to yourself.  But in the OSC’s annual inspection, the OSC’s Chief Surveillance Commissioner Sir Christopher Rose stated “putting an arm into a wheel arch or under the frame of a vehicle is straining the concept of trespass“.

However to enter the private land of anyone in order to deploy a tracker is clearly a trespass which is a civil tort.

Harassment & Stalking: Surveillance in all of its forms can sometimes be misinterpreted by the public as stalking.  There is no legal definition of ‘stalking’. Neither is there specific legislation to address this behaviour. Rather, it is a term used to describe a particular kind of harassment. Generally, it is used to describe a long-term pattern of persistent and repeated contact with, or attempts to contact, a particular victim.

Examples of the types of conduct often associated with stalking include: direct communication; physical following; indirect contact through friends, work colleagues, family or technology; or, other intrusions into the victim’s privacy. The behaviour curtails a victim’s freedom, leaving them feeling that they constantly have to be careful.

In many cases, the conduct might appear innocent (if it were to be taken in isolation), but when carried out repeatedly so as to amount to a course of conduct, it may then cause significant alarm, harassment or distress to the victim

If the subject of enquiry is aware of the tracking, then this may amount to harassment under the Prevention of Harassment Act 1997.  There is a case at the Royal Courts of Justice where a private investigator is being sued under this act for the use of trackers.

Property Interference: This refers to RIPA or Regulation of Investigatory Powers Act 2000.  The Home Office published a document entitled “Covert Surveillance and Property Interference, Revised Code of Practice, Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000” where it suggests in Chapter 7, page 61 that;

General basis for lawful activity

7. 1 Authorisations under section 5 of the 1994 Act or Part III of the 1997 Act should be sought wherever members of the intelligence services, the police, the services police, Serious and Organised Crime Agency (SOCA), Scottish Crime and Drug Enforcement Agency (SCDEA), HM Revenue and Customs (HMRC) or Office of Fair Trading (OFT), or persons acting on their behalf, conduct entry on, or interference with, property or with wireless telegraphy that would be otherwise unlawful.

7. 2 For the purposes of this chapter, “property interference” shall be taken to include entry on, or interference with, property or with wireless telegraphy.

The chapter gives an example;

Example: The use of a surveillance device for providing information about the location of a vehicle may involve some physical interference with that vehicle as well as subsequent directed surveillance activity. Such an operation could be authorised by a combined authorisation for property interference (under Part III of the 1997 Act) and, where appropriate, directed surveillance (under the 2000 Act). In this case, the necessity and proportionality of the property interference element of the authorisation would need to be considered by the appropriate authorising officer separately to the necessity and proportionality of obtaining private information by means of the directed surveillance.

This can be interpreted to mean that placing a tracker on a vehicle without the consent of the owner is illegal unless you obtain authorisation from the Surveillance Commissionaire under the RIPA 2000 laws.  Since as private investigators we cannot obtain such authorisations, it is therefore illegal property interference.

Another interpretation is that it is illegal to do so IF you are acting under the instruction of a public authority and you do not obtain authorisation. The legislation makes no mention of property interference for anyone else.  ERGO this does not apply to us!

The second interpretation is the valid one.  I have had advice from two different lawyers on this and both are in agreement that there is no legislation in place that deals with the deployment of trackers in a criminal sense except RIPA 2000 and that RIPA 2000 ONLY applies to those agencies and persons mentioned in it.

CONCLUSIONS

It is possible that the civil offence of trespass is committed if the vehicle is on private property when the tracker is deployed.

It is also possible that if the subject of enquiry becomes aware of the tracker, this may amount to harassment under the Prevention of Harassment Act 1997 if they pursue a course of conduct

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.”

It is the opinion of this writer that the use of GPS Trackers is not illegal and that no criminal offenses are committed in the deployment of such resources.

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