Submitted by: Te Li
The Conservative Party 2019 election manifesto, Get Brexit Done: Unleash Britain’s Potential has a section on p. 48 titled “Protecting our Democracy”. It reads: “….” .
If you were a civil servant advising the new Commission what particular items would you suggest should be included on the agenda for reform, and what options might you suggest?
Since Brexit generated many potential challenges to the existing UK’s constitutional arrangements, the Conservative Party 2019 election manifesto pointed out after Brexit, we need to look at the broader aspects of our constitution. At the beginning of the twenty-first century, advancements in technology are posing significant impact on constitutional values, from privacy to free speech, from the personhood to the state’s authority to protect security. As a civil servant, I propose this report to identify how does the digital revolution create some new sources of threats to current constitutional arrangement. This report will firstly, point out the general alterations triggered by the digital technology on our constitution. On its face, this would be an enormous question, hence, the second part of this report merely focuses on one specific dilemma between digital surveillance and privacy, adopting two recent cases to demonstrate above concerns. Finally, I propose two general considerations and several reform advices to response those concerns.
THE ALTERATION BROUGHT BY THE DIGITAL TECHNOLOGY ON CURRENT CONSTITUTION
David Runciman in his book ‘How Democracy Ends’ identified that “the spirt of modern democracy has been founded on a combination of, first, providing mechanisms for individuals to have their voice taken into account, thereby being afforded respect in the public sphere, and secondly, its capacity to deliver long term benefits in the form of a chance of sharing in stability, prosperity and peace.” Currently, the problem for democracy is that these two elements are splitting apart, effective solutions to shared problems depends more on technical expertise, technocrats using expertise which is not comprehensible to the public changed the “traditional ways of aligning power with human interests through democratic control by citizens, regulation by government and competition in markets.”
Anne Peters defined that the basic function of constitutional law involved two aspects “1) the protection of fundamental rights and 2) the balancing of powers”. However, digital technology already generated many alterations in the current constitutional ecosystem. Edoardo Celeste described that “the incessant development of digital technology and its disruptive impact on contemporary society are generating a new constitutional moment.” Firstly, modern citizens may use digital instruments to learn, to shop, and to socialise. Namely, digital technology expands the possibility to transmit information, thus all fundamental rights in relation to exchange of information (freedom of expression, the right to education, freedom of association and participation in elections etc.) are enhanced.
Secondly, the same increased possibility to transmit information enabling the exercise of fundamental rights can also become a source of threat. Defamation, hate speech, cyberbullying illustrated that how the freedom of expression could be illegally used through digital instruments. In particular, Joint Committee on Human Rights published report on ‘Democracy, freedom of expression and freedom of association’ pointed that “MPs are regularly threatened with physical violence and are subject to harassment and intimidation whilst undertaking their wider public duties on social media”. The death of 14-year-old girl Molly Russell highlighted the harm posed by the graphic content relating to suicide and self-harm which are available online. Additionally, digital technology can also block or restrict the transmission of information, to monitor the content of the transmitted information or to register other information related to the individuals involved in the transmission. Such unauthorised restriction and access would violate individuals’ fundamental rights which are based on transmission and its content (freedom of expression, right to privacy). Other information concerning the transmission of information may represent individuals’ personal data, the illegitimate use of them would endanger individual’s rights to data protection.
Thirdly, digital technology impacts the balancing of powers in the constitutional mechanism. Gunther Teubner identified that “private corporations producing, selling and managing digital technology products worldwide are emerging in the constitutional scenario as a new dominant actor beside nation states.” These non-state corporations detain the power to regulate the use of digital technology instruments by individuals. Although the violation of fundamental rights perpetrated by the private actors are not a novelty caused by the advancement of digital technology, the dominate role of non-state in digital circumstance increased the possibility of rights violations perpetrated by non-state actors. Celeste concluded that “such circumstance subverts the setting of the existing mechanisms of power balancing, which rather focus on the relationship between individuals and nation-state.” Namely, the application of digital technology may potentially challenge how we understand the relations between individuals and states.
The alterations brought by the digital technology on the UK’s constitution mechanism is quite broad and profound. In order to make reasonable reform proposals, the rest of this report will focus on two recent cases which reflected specific application of digital surveillance and data collection and demonstrate how these technological means challenged the citizens’ liberty and fundamental rights.
DILEMMAS OF PRIVACY AND DIGITAL SURVEILLANCE
The term of ‘surveillance’ traditionally means visual process which involves looking the behaviours of individuals and objectives. The nature of contemporary surveillance has been changed dramatically through various digital technology means, such as closed-circuit television (CCTV), Facial Recognition (FR), sensing devices ect, as “there is no barrier to storing all footage indefinitely and ever-improving means of image-searching, in tandem with developments in face and gait-recognition technologies, allows footage to be searched for individual people.”
Surveillance technology can be adopted by public sector to achieve specific objectives, such as maintaining public order, protecting national and public safety, preventing and detecting crimes, anticipating and meeting social needs. Private sector surveillance is prevalent in the majority of commercial circumstance, corporations build their business under ‘Customer-relationship marketing’ system to ‘knowing the customer’ through intensive surveillance of consumer behaviour. Zuboff recognised that such phenomenon triggered a new logic of accumulation-‘surveillance capitalism’ which aims to predict and modify individuals’ behaviour as a means to produce revenue and market control. However, the distinction between the public and private sector is generally blurred, as some public sector bodies employ outside firms to manage their database, and some public services are provided through the form of joint arrangements and partnerships.
The common justification for surveillance is ensuring public safety and efficient law enforcement. During 1990s approximately 78% of the Home Office crime prevention budget was spent on installing CCTV, whilst some £500 million of public money was invested in the decade up to 2006. Specifically, the Association of Chief Police Officers pointed out that the event of London nail bombing campaign was entirely supported by CCTV evidence in terms of actually detecting the crime. Another main advantage of digital surveillance would be provision of efficient public services. The mechanism of the electronic-government (e-government) through the electronic coordination of health care, education and public transport aims to achieve good governance. Citizens currently can obtain various public services from the government quickly. Digital surveillance and data collection potentially strengthened the speed and efficiency of bringing information together to serve citizens better.
We may also noticed that there are many constitutional challenges brought by enforcement of digital surveillance, firstly, it may lead to a conflict between the interests of the citizen and the goals of the state, as the gathering of personal information has the potential to undermine the right to privacy, guaranteed by Article 8 of European Convention Human Rights (ECHR) and limit the freedom of the individual. Professor Ian Loader stated that “privacy should remain an important part of conversation about surveillance, because the capacity to control information about your life seems to me an important part of what it means to have…a sphere of autonomy within which to operate that the state cannot encroach upon.” Secondly, the increase spread of surveillance was gradually transforming current constitutional landscape, as it may disturb some presumptions and relationships that underpin the traditional connection between the individual and the state. David Murakami Wood argued that “we exist in a society of a kind of tacit social contract where we expect to be free and to have those freedoms protected and the main reason for security is to protect our rights to do about our daily business unhindered. Where that protection starts to remove those freedoms themselves, I think that tacit contract is challenged.” In similar vein, since the innocent citizens are concerned their personal data may get into hands they do not want the information to get into, and they are not willing to provide requested information to government as a target of suspicion, hence, digital surveillance may cause the loss of trust in the state. Thirdly, surveillance encourages discrimination, as “it leads to the government and private organisations shifting their focus from a concern for the individual to a desire to categorise and manage populations.” The evidence shows that over-representation of black men in the DNA Register is a serious problem, because part of the reason is they are more likely to be arrested by the police. Thus, existing surveillance systems and databases have a long-standing institutional biases which constituted a basis for discrimination based on factors like race.
Two cases analysis
The case of R (on the application of Edward Bridges) v The Chief Constable of South Wales, is the world’s first case regarding the privacy implications of facial recognition. The judgment was handed down by the High Court in Cardiff on 4 September 2019. The claimant Mr Bridges was shopping in the city centre and his image was captured by the Automated Facial Recognition technology (AFR) in South Wales Police’s (SWP) van. He challenged the legality of SWP’s use of AFR on the ground that its use contrary to the requirements of the Human Rights Act 1998, Data Protection legislation and such implement had not been in accordance with the public sector equality duty enshrined in the Equality Act 2000. The Court concluded that although the use of AFR did engage with the Article 8 of the members of the public whose images were taken and processed, those actions were subject to the sufficient legal controls, contained in primary legislation, statutory codes of practice and SWP’s own polices, and it was deployed for a limited time and specific purpose. Thus, the use of AFR were legally justified. On the Data Protection claims, the Court decided that ‘the processing of personal data was lawful and met the conditions set out in the Data Protection Act 2009 which apply to the law enforcement authorities such as SWP.’ Further, the Court satisfied with the that SWP complied with the requirement of the public sector equality duty.
It can be found that the Mr Bridge’s allegations, reiterated the potential challenges we discussed in above section. Although the Court’s opinion satisfied with the current legal protection regime, the judgment of Bridges generated many critiques, and this case is being appealed now. Some legal professionals and privacy advocates surprised with “the application of AFR can be integrated into current legal frameworks without the separate regulatory guidelines.” Others argued that Bridges is only a specific example, it cannot provide a ‘blanket authorisation’ for police to use AFR in any circumstances. Bridges indeed reflected a concern that the application of digital technology is threatening citizens’ fundamental rights and we may question whether the existing legal regime is sufficient to provide adequate protection for citizens’ fundamental rights.
The dilemma between privacy and digital surveillance can also be identified in one report published by Joint Committee on Human Rights, which concerned the legality of the Digital Contact Tracing (DCT). In order to address Covid-19 pandemic, the UK government is required to protect the right to life, protected by Article 2 of ECHR. The government has sought to protect right to life by enforcing ‘lockdowns’, which have placed severe restrictions on individual’s movement, with significant implications for human rights. The government now plans to realise a DCT app as part of its strategy to “test, track and trace to minimise the spread of Covid-19 and move towards safely reducing lockdown measures.” This app may notify individuals who may have exposed to the virus to take appropriate action. However, such app may potentially have impact on the right to privacy, guaranteed by Article 8 of the ECHR. The Committee stated that if the enforcement of DCT enables people to move freely and safely and is accompanied with the sufficient protections, the risk to privacy would be a proportionate interference. But the question is that whether the current legal arrangements provide satisfactory legal protection. Hence, the Committee concluded that if the “DCT rolled out without being governed by a clear legislative framework it risks not complying with the provisions of the ECHR.” Further, it may also trigger potential long-term effects on personal freedoms and concerns around surveillance encroaching on individuals’ daily life. To the bottom of this question, the fundamental rights violated by DCT would be novel under current constitutional context, it also introduced an innovative apparatus of State interaction with its citizens.
Since the digital technology redefined current constitution and democracy regime, it would be difficult to propose a specific reform plan to tackle those novel challenges. However, I think two general considerations should be taken into account. Firstly, as we identified that digital technology redefined individual’s fundamental rights, and currently those digital rights do exist, they have developed and protected, in a piecemeal fashion, as a result of HRA 1998 and DPA 2018 and other legislations. The introduction of a unitary Digital Bill of Rights may more likely ensure that citizen’s human rights that apply in the physical world also apply online and create the key rights which are particular to the digital sphere. Secondly, in order to revitalise democracy under digital environment, we need to rethink the existing citizen participation mechanism. Technological challenges required a change of paradigm and strong commitment from decision-maker. Jacob L. Nelson in his research found that “digital civic engagement fills the void left by drops in more conventional forms of political participation, and educators have an importance role to play in cultivating online and offline civic engagement among young people.” Hence, I propose there would be more online participatory initiatives, which can reinforce the engagement of citizens throughout public policy and the decision-making process.
In order to response the challenges brought by digital technology especially mass surveillance, the first question would be whether the current legal regime is satisfactory. The UK privacy law is protected by Article 8 of ECHR, and DPA 2018, the common law duty of confidence. The Ministry of Justice argued “that the current legal framework is responsive and robust enough to meet future needs.” And Tony McNulty MP also believed that “the fundamentals of the regulatory system were sound and the boundaries between acceptable and unacceptable surveillance were very clear.” However, I support the view that “an incremental approach to the development of regulations and safeguards cannot keep peace with the speed of technological change, unless a great effort was made to harmonise the various parts of the present legal framework.” Therefore, I propose that we need to bring those existing pieces of legislation together, start to link them and assess where the holes are and to fill them.
Secondly, there would be a mandatory Privacy Impact Assessment (PIA) prior to the enforcement of any new surveillance technology, data collection system. such PIAs should be scrutinised by Information Commissioner. I recommend that after public consultation, a similar system should be introduced to the private sector. To the bottom of this advice, it required authorities to assess the efficacy and proportionality of the proposed new technology, questioned whether the new technology’s contribution to achieving its purpose (preventing crimes, combatting coronavirus) can reasonably justify its collection of personal data. If the digital means does not work or only has a minimal effect, the collection of data would be indefensible.
Thirdly, I propose there should be an independent authority, such as DCT/AFR Human Rights Commissioner, to oversee the use, effectiveness and privacy protection of the such new technology. Such authority should have similar enforcement powers to the Information Commissioner, to oversee how collected data is being processed and protected. The government and commissioners must undertake a regular review to assess the efficacy and safety of the data and how privacy is protected. Such commissioner and government must be transparent about how these technologies, and data collected through it, is being used.
Finally, the current legal protection regime is contained in a number of legislations and it is impossible for the public to understand what it means for their data and how their fundamental rights can be protected. Thus, governments should issue some guidelines in relation to the specific new adoption of technology to enable the public to understand how the current legal regime can protect their rights. However, one point is government’s assurance around data protection and privacy standards will not carry any weight unless the government is prepared to enshrine these assurances in legislation, thus there is a necessity to call on a separate and detailed Bill in the field of novel digital technology such as AFR and DCT apps.
Overall, this report firstly pointed out the development of digital technology and its disruptive impact on contemporary society are generating a new constitutional moment. On the one hand, digital technology expands the possibility to transmit information, all fundamental rights in relation to exchange of information are enhanced. On the other hand, digital technology also adversely impacts citizens’ fundamental rights such as cyberbullying, misuse of personal data and illegally blocking transmission of information. Further, private corporations playing a dominant actor in digital situation increased the possibility of rights violations by non-state roles, which threaten the current mechanism of power balancing between individuals and nation-state. Specifically, the rest of this report was confined to dilemma between privacy and digital surveillance, it identified the advantages and the risks of digital surveillance. The right to privacy would be undermined, the relationship between individuals and state will be altered and the indirect discrimination may be potentially triggered. The adoption of AFR and DCT apps could further emphasise this dilemma. In order to response these concerns, generally, a Digital Bills of Rights should be taken into account to protect individuals’ fundamental rights online, and the government should propose more participatory initiatives online to reinforce the civic engagement. Regarding to privacy protection in digital era, I recommended that we need to bring those existing pieces of legislation together, start to connect them and assess where the holes are and to fill them. Mandatory PIAs should be undertaken both in public and private sector, the efficacy and proportionality would be the key assessment point. I recommend that an independent body (like DCT/AFR Commissioner) should be established with the ability to oversee the use, effectiveness and privacy protection. Government should be more transparent and issues more guidelines for public. Meanwhile, a separate Bill in the area of novel technology would be necessary.
R (on the application of Edward Bridges) v The Chief Constable of South Wales,  EWHC 2341 (Admin).
Journal Articles and E-book
Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19 Leiden Journal of International Law.
Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP 2006).
Angus Crawford, ‘Molly Russell: Instagram extends self-harm ban to drawings.’ 28 October 2019.
Celeste, Edoardo, Digital Constitutionalism: Mapping the Constitutional Response to Digital Technology's Challenges (July 25, 2018). HIIG Discussion Paper Series No. 2018-02.
Evans M, “The Data-Informed Marketing Model and its Social Responsibility”, in The Glass Consumer,op. cit., Chapter 4, pp 99–132.
Gunther Teubner, ‘Societal Constitutionalism; Alternatives to State-Centred Constitutional Theory?’ in Christian Joerges, Inger-Johanne Sand, and Gunther Teubner (eds), Transnational Governance and Constitutionalism. International Studies in the Theory of Private Law (Hart 2004).
Jacob L. Nelson ‘Digital Democracy in America: A Look at Civic Engagement in an Internet Age.’ Journalism & Mass Communication Quarterly 2017, Vol. 94(1) 318 –334
Lord Sales, ‘Algorithms, Artificial Intelligence and the Law’ The Sir Henry Brooke Lecture for BAILII Freshfields Bruckhaus Deringer, London. 12 November 2019.
Zuboff, Shoshana, ‘Big Other: Surveillance Capitalism and the Prospects of an Information Civilization.’ (April 4, 2015). Journal of Information Technology (2015) 30, 75–89.
Reports and other online sources
A Report on the Surveillance Society, September 2006.
“Coronavirus test, track and trace plan launched on Isle of Wight”, Department of Health and Social Care press release, 4 May 2020
Dilemmas of Privacy and Surveillance: Challenges of Technological Change, op. cit.
Elizabeth Denham, Blog: Live Facial Recognition technology – police forces need to slow down and justify its use. (Information Commissioner’s Office).
Joint Committee on Human Rights, First Report Session 2019–20, Democracy, freedom of expression and freedom of association: Threats to MPs, HC 37 / HL Paper 5.
Joint Committee on Human Rights ‘Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing’, HC 343 HL Paper 59, published on 7 May 2020, 3.
Surveillance: Citizens and the State, Volume I: Report, Select Committee on the Constitution.
Suneet Sharma, ‘Case Law: R (Bridges) v Chief Constable of South Wales Police: The use of Facial Recognition software by the police is lawful.’
 Lord Sales, ‘Algorithms, Artificial Intelligence and the Law’ The Sir Henry Brooke Lecture for BAILII Freshfields Bruckhaus Deringer, London. 12 November 2019, P8.  Ibid.  Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19 Leiden Journal of International Law 579.  Celeste, Edoardo, Digital Constitutionalism: Mapping the Constitutional Response to Digital Technology's Challenges (July 25, 2018). HIIG Discussion Paper Series No. 2018-02.  Joint Committee on Human Rights, First Report Session 2019–20, Democracy, freedom of expression and freedom of association: Threats to MPs, HC 37 / HL Paper 5  Angus Crawford, ‘Molly Russell: Instagram extends self-harm ban to drawings.’ 28 October 2019.  Gunther Teubner, ‘Societal Constitutionalism; Alternatives to State-Centred Constitutional Theory?’ in Christian Joerges, Inger-Johanne Sand, and Gunther Teubner (eds.), Transnational Governance and Constitutionalism. International Studies in the Theory of Private Law (Hart 2004) 3  Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP 2006).  Celeste (n4) p5.  Dilemmas of Privacy and Surveillance: Challenges of Technological Change, op. cit., p7.  Evans M, “The Data-Informed Marketing Model and its Social Responsibility”, in The Glass Consumer, op. cit., Chapter 4, pp 99–132.  Zuboff, Shoshana, ‘Big Other: Surveillance Capitalism and the Prospects of an Information Civilization.’ (April 4, 2015). Journal of Information Technology (2015) 30, 75–89.  A Report on the Surveillance Society, September 2006, para 9.5.3.  Surveillance: Citizens and the State, Volume I: Report, Select Committee on the Constitution. para 76.  Ibid, para101.  Ibid, para105.  Ibid, para112.  Ibid, para113.   EWHC 2341 (Admin).  Ibid, para47-62.  Ibid, para63-97.  Ibid, para121-141.  Ibid, para149-158.  Suneet Sharma, ‘Case Law: R (Bridges) v Chief Constable of South Wales Police: The use of Facial Recognition software by the police is lawful.’  Elizabeth Denham, Blog: Live Facial Recognition technology – police forces need to slow down and justify its use. (Information Commissioner’s Office)  “Coronavirus test, track and trace plan launched on Isle of Wight”, Department of Health and Social Care press release, 4 May 2020.  Joint Committee on Human Rights ‘Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing’, HC 343 HL Paper 59, published on 7 May 2020, 3.  Ibid, 4.  Jacob L. Nelson ‘Digital Democracy in America: A Look at Civic Engagement in an Internet Age.’ Journalism & Mass Communication Quarterly 2017, Vol. 94(1) 318 –334.  Surveillance (n13) para119.  Ibid.  Ibid 120.  Joint Committee on Human Rights (n26), p12.