The news that the US Government has been ‘sharing’ data with the UK via social networking websites – interesting language of course as the word ‘share’ indicates that we have had some sort of choice in the matter – has reminded us of a case Birmingham Law Centre ran last year on the right to protect our census data. At the time, Tony Muman, Counsel for our client said that, ‘the question of the security of the data of UK citizens is of the utmost importance.’
Exactly 12 months ago, we were involved in a Judicial Review of the compatibility of the UK census with Human Rights and EU law [see our blog post here]. After a two day hearing pulling apart both the Data Protection Act and Article 8 ECHR in order to test the robustness of the legal protections of census data, Mr Justice Beatson decided that no further guarantees were needed to ensure that US companies such as Lockheed Martin would not legitimately be able to access, retain and analyse the personal data of each census completing householder in the UK [see judgment here].
With the greatest of irony, the Government’s lawyers had trumpeted the power of Article 8 and convinced the High Court that this provided sufficient protection for the data of UK citizens. This was after all the same month that the Home Secretary Theresa May had introduced new rules[/b] spelling out how judges should apply the European Convention on Human Rights, concerned that too many people were ‘using’ Article 8 to avoid deportation.
We thought that the confidentiality assurances given by the Government and the Statistics Board in the lead up to the 2011 census were materially flawed. And we argued that, until the UK Government provided cast iron legislative guarantees on data confidentiality, the US intelligence agencies could continue to access UK data unimpeded. This is because companies such as Lockheed Martin have statutory obligations under the USA Patriot Act 2001 which allows the US government to force them to hand over data in their control.
Oh, well. It was a really interesting argument but we didn’t succeed in persuading the Court of the need to provide UK citizens with a cast-iron guarantee of data confidentiality over and above the protections already in place. So we have been watching the events of the last few days with great interest…
We couldn’t have predicted the current data surveillance scandal and the level of concern there now is over the power and reach of the Patriot Act but our case seems prescient. Mr Muman said yesterday, ‘they should have listened to us…’