What's Bugging You?
Or perhaps it would be better to ask 'Who's bugging you?'
Since the twin towers incident in America, and the growth in suicide bombings in the UK and elsewhere, Governments have sought to protect us better with more comprehensive security measures.
Or they have used such opportunities to ferment the fear that allows them to impose draconian new laws or powers that make us easier to manage, and which deny us the very freedoms they claim to be protecting.
It all depends on your viewpoint.
We lean naturally toward the latter - but then, we never did like to feel 'managed' so that's no real surprise.
We could probably run a whole series of articles around this issue, but it is a global one, and we mostly focus on local issues, so it only becomes of interest to counterbalance where the national policy affects local issues.
The microchips that Fylde Council has fitted to our wheelie-bins will become an issue if they are ever used by FBC, but so far they are sitting quietly under the rims.
However, one issue that has recently surfaced (in a rather obscure way) is RIPA - the less than affectionate acronym for the Regulation of Investigatory Powers Act 2000. You can see details of
the raw RIPAct here and the spin explanation on the Home Office website
We regard this Act, in common with much of the supposed anti-terror legislation, as a very bad piece of law.
However, having got it through Parliament, its proponents now claim it was never intended to be anti-terror legislation.
Even the BBC News has been told to stop calling it as such.
As recently as 8 July the newsrooms appear to have been told
"The ECU [Editorial Complaints Unit of the BBC] is upholding a complaint against BBC News for describing the above [RIPA] Act as a piece of "anti-terrorism legislation" which was passed "in 2000 as the threat of global terrorism was
on the rise".
Please refrain from using these phrases in future coverage of the Act as the first is wrong, the second is misleading.
The purpose of the act was to give legal structure to surveillance following the introduction of the Human Rights Act. The surveillance was aimed at serious criminals and, though terrorists would fall into the category, it is wrong to describe this as
anti-terror legislation. Equally RIPA was passed at a time when British law enforcement agencies were more concerned with potential threats from dissident IRA followers than a more global threat so it is misleading to imply that global terror was a
significant factor in prompting the legislation.
Should you need to describe the purpose of the Act in brief terms it would be better to say it "covers all sorts of serious crime"."
Assuming this is an accurate report of the BBC internal email (and we have been unable to confirm that), we find this interpretation - together with the 'guidance' itself, and the reason for it being issued to BBC newsrooms, even more
frightening than the Act itself.
The Act allows those so authorised to invoke phone taps, read the post, and access emails (which are stored for 6 months) by a provider of communications services.
But it's not only MI5 and Spooks that get RIPA powers. It applies to many groups, with some you might not expect - including The Ministry of Agriculture, The Environment Agency, The Post Office, and "any local authority"
So what about Fylde?
Fylde Council has just 'refreshed' its own Constitution, and a lot of change has been introduced to the latest version. One of the less obvious additions to its provisions is:
"On page 42, in the delegations to all executive managers, insert the words "Authorising directed surveillance operations under the Regulation of Investigatory Powers Act 2000 (except Head of Legal Services)". REASON: All executive managers (except
the Head of Legal Services) are designated as authorising officers under the Regulation of Investigatory Powers Act 2000. The change records this in the constitution."
This means seven Fylde Council officials have the personal authority to require any CSP (Communication Service Provider) to deliver data on any email or phone call sent by any person, anywhere in the UK. *See UPDATE at end
The people at Fylde who currently have this authority are:
Allan Oldfield - Executive Manager Policy & Performance
Tracy Scholes - Executive Manager for Democratic Services & Member Support
Clare Platt - Executive Manager for Consumer Wellbeing & Protection
Paul Norris - Executive Manager for Customer and Community Services
David Jenkinson - Executive Manager for Streetscene (although we believe Mr Jenkinson may still be suspended pending an investigation into the huge losses that his Streetscene department reported last year)
Paul Walker - Executive Manager for Strategic Planning & Development
There was also Brian White - Executive Manager for Financial Services until his departure last year shortly before the Streetscene losses were made public.
Each of these people could get to see an email you have sent, or hear a phone call you have made.*See UPDATE at end
We were curious about this, and made enquiries - as did Councillor Simon Renwick who raised this at the last Council meeting, and obviously doesn't like the Big Brother state prying into our affairs any more than we do. It seems the power is not new,
and has been vested in these officers for some time. It's simply being included in Fylde's 'Constitution' to regularise and record the power they already have.
To exercise the power, they would send a notice to the relevant Communication Service Provider (CSP - the person who provides your email service or your phone service) which would identify the information required, backed up by an instruction to
provide it - something like:
"Where it appears to the designated person that a CSP is or may be in possession of, or may be capable of obtaining, any communication data, the designated person may by notice require the CSP
a) if the CSP is not already in possession of the data, to obtain the data; and
b) in any case, to disclose all of the data in his possession or subsequently obtained by him. S. 22(6) - It is the duty of the CSP to comply with any notice given to him under subsection (4) "
And there we are. The eyes have it.
To be fair, Fylde is not the only council to have this power. It exists for all councils to use.
A recent Press Association inquiry to 96 local councils showed that 46 had used the legislation 1,343 times against residents, and one council has used it 131 times, mainly against rogue trading, benefit fraud and anti-social behaviour like
But some said they also used the law to find out about other less serious offences, such as:
Derby City Council, Bolton, Gateshead and Hartlepool used surveillance to investigate dog fouling.
Bolton Council also used the act to investigate littering.
The London borough of Kensington and Chelsea conducted surveillance on the misuse of a disabled parking badge.
Liverpool City Council used RIPA to identify a false claim for damages.
Conwy Council used the law to spy on a person who was working while off sick.
The survey found the biggest user of RIPA was Durham County Council, which used it 144 times in the last 12 months.
Burnley Council recently admitted to using the legislation to "Direct observation of movements on and off Burnley town hall car park to monitor employees' flexitime"
Fylde Council has used the powers available to it under RIPA. It has been suggested the powers have only been used in connection with detection of Housing Benefit Fraud. We've asked formally how many times the powers have been used, but as yet we
have not received a reply. We will publish an update when we are told.
So what can RIPA include?
Well, under the Regulation of Investigatory Powers Act, councils can instigate covert surveillance which means observing members of the public to see whether they are engaging in criminal activity such as fly-tipping or to identify rogue traders.
Councils can also use what is called covert human intelligence sources which can mean straight surveillance but can also mean talking to those suspected of criminal activity such as test purchasing operations, for example, to see whether
off-licences are selling alcohol to under-18s.
Councils can also apply for access to billing information for telephones or emails to try to track down people who are, for example, selling counterfeit goods or who are 'rogue traders'. (we're tempted to wonder at this point if 'rogue trading'
covers things like anticipating the ability to trade when you don't have that right, and losing £100,000 of taxpayers income in the process. If so, we wonder whether the Streetscene boss who did this might have had to authorise the tapping of his
own phone and the interception of his own emails).
Strange world we live in.
We have long been nervous of the Council's own internal email system, where the email addresses take the form of firstname.lastname@example.org
Councillors of all political persuasions correspond with counterbalance by email. (And for the benefit of the Paranoid Pool Closing Commissar who thinks counterbalance only gets its information from independent councillors, we'd like to
say we do get email from Conservatives). We always encourage them to use personal email addresses. We know how easy it would be to have an automated reader set to scan email passing through the Council's own email server for particular
keywords, and to make copies for subsequent reading as an email passes through.
But in reality, if someone is suspected of a crime, it's easy for one of the 'Magnificent Seven' to order a CSP to provide them with data anyway. So no-one is safe from prying eyes. Big Brother is truly with us.*See UPDATE at end
Whether you're happy with this depends on two things. Firstly whether you think the RIPA is a good thing in general. Some people no doubt will.
We don't. We think it is a gross abuse of personal freedom.
Secondly whether you feel able to trust the people to whom the power has been allocated.
Again, and without personal criticism of the individuals involved, we do not believe surveillance by the State should reach down to the level of local councils at all. That should be the job of the police and authority to request it should rest
with a high ranking officer.
But most especially we believe all surveillance should require a court order. No if's no buts. That's what gives it legitimacy. That's what retains control of surveillance outside the political executive, that's what makes it bearable, knowing
that an independent judge has agreed it is necessary.
So until this awful law is removed, if you are planning to make any contentious phone calls - use your neighbour's phone!
With email, you can also use an anonymous proxy server in another country not covered by RIPA if you are sensitive. (Just put 'proxy server' into Google to find out more).
As a final point, the day after we started enquiring about this with Fylde Council, a BT van pulled up at the telephone pole outside counterbalance mansions. The pole carries our phone line and internet connection, and a man in a yellow
jacket climbed the pole and started poking about in the wires at the top.
We're sure this was only routine work of course........
Dated: 5 August 2008
UPDATE 8 August 2008
The powers to access communications data are set out in section 21-25 of RIPA. These were previously the domain of a
select group including the police, MI5 and the Inland Revenue. They have now been extended to a total of five hundred other public bodies, including councils. However the legislation restricts access to the types of communications data depending
on the nature of the body requesting it and the reason for doing so.
The definition of "communications data" includes information relating to the use of a communications service but does not include the contents of the communication
itself. It is broadly split into 3 categories: "traffic data" i.e. where a communication was made from, to whom and when; "service data" i.e. the use made of the service by any person e.g. itemised telephone records; "subscriber
data" i.e. any other information that is held or obtained by an operator on a person they provide a service to.
Some public bodies will get access to all types of communications data. Others will be restricted to subscriber and service use data where it is required for the purpose of preventing or detecting crime or preventing disorder. For example, a
benefit fraud investigator may be able to get access to an alleged fraudster's mobile telephone bill.
So according to at least one legal interpretation, Councils would not be able to require the actual content of an email to be disclosed.
However, counterbalance has contacts within the telecoms industry that receive RIPA requests. They believe that in practice, Communications Service Providers will not always check the scope and authority of the requesting
authority, and some of the smaller CSP's may not even know they should. In practice therefore, it looks to be possible for data to be provided irrespective of whether it should be.