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Bill defines 'personal information' to avoid strengthening DPA penalties

Rapid backpedalling from the new gov

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Ah, the reality of power. For all the opposition talk about strengthening the protection of privacy, in the first weeks of government, the pro-privacy proposition has become more difficult to implement. The inevitable result is that gears are being put into neutral or reverse (as quietly as possible, mind you).

So it is with the repeal of the ID Card Act and the abolition of the National Identity Register by the Identity Documents Bill 2010-11, which has its second reading today. We all know that from their respective manifestos, both Lib-Con coalition partners wanted to scrap ID Cards and strengthen the penalties in the Data Protection Act. We know that the previous government had draft legislation on the stocks which provided for custodial penalties for misuse of personal data under the Data Protection Act.

With apparent political unity about the weak data protection offences associated with the deliberate misuse of personal data, one would have thought that a stronger penalty could have been introduced quite quickly. Alas, this is not the case. The Identity Documents Bill has used a contorted definition of “personal information” in order to avoid strengthening the offences in the Data Protection Act.

The Bill defines “personal information” to be a small subset of the fifty or so personal details that were to be contained in the ID Card's National Identity Register (the NIR is being abolished). As these items of information are used in relation to the issuing of passports, the Bill stipulates that if this “personal information” is misused or procured in order to produce fake official ID documents, then this misuse can be punished by a maximum 10-year prison sentence.

Of course, as the NIR is a computerised database, so the “personal information” of the Identity Documents Bill are also “personal data” of the Data Protection Act. So if the Government wanted to introduce a data protection offence that carried a two-year custodial sentence, and maintain the same effect as in the Identity Documents Bill, all it needed to do in this Bill was to: (a) introduce the data protection offence as agreed before the Election; (b) remove the restriction of the data protection offence applying to category 'e' personal data; and (c), widen the custodial aspect of the offence to 10 years in the context of an identity document.

This is as simple as ABC - it would be job done and another manifesto promise ticked off. It is not a difficult to draft clauses to achieve this effect, and sadly, because it is so simple, one has to surmise that its omission is the result of a deliberate policy decision.

The Bill is not only about the abolition of the ID Card: it is also about enhancing data sharing powers. The government has taken the opportunity to enable the Identity and Passport Service to obtain personal data when verifying information provided with passport applications from any Government Department, any Northern Ireland Department, any Registrar General (for births deaths and marriages), Welsh Ministers, any credit reference agency and from any “person specified for the purposes of this section by an order made by the Secretary of State”.

So flexible and extensive “data sharing”, including data sharing by order, appears in the very first Bill (Bill No 1). It might be very uncharitable, but the new government, it appears, has learnt the data sharing habits of New Labour on day one!

The Bill has also highlighted another emerging privacy problem. We now have a private sector data controller such as a Credit Reference Agency (CRA) making profits by virtue of the granting of powers to demand personal data (eg from public sector Electoral Registration Officers), and provide these details, in possible combination with those personal data obtained by “consent” of data subjects, when consumers “consent” to provide to financial services providers when they take out a mortgage or loan.

Personal data from these CRA databases are also increasingly being “shared” with more and more public authorities, as with this Bill. If this trend continues, private sector credit reference agencies with their extensive databases will assume a public accountable deficit with respect of their processing of personal data that will have to be tackled. For example, the Information Commissioner can inspect and audit all large databases of government departments; it is difficult to see why the CRA databases (which span most of the UK population and which also obtain personnal data by law) should be excluded from this regime.

I should add as an aside that I can’t see why ID Cards (known as biometric resident permits) remain for “Johnny Foreigner” as it does not appear to make much sense and appears unnecessarily divisive. Mind you, if lucky foreigners are the only people to continue to receive all the full benefits of having an ID Card, one wonders whether possession of these delightful objects should not be extended to those “Non-Doms” we heard about during the election campaign? Don’t worry Lord Ashcroft – that was an attempt at a joke.

Finally, I conclude with some comments with two minor aspects of the Bill that need exploring by means or probing amendment:

(a) Clause 3 of the Bill requires the destruction of information “recorded in the NIR”; it does not appear to require destruction of information collected prior to input into the NIR nor extracted from the NIR, prior to its destruction. The Clause appears to be too limited in scope.

(b) Schedule 1, paragraph 11 of the Bill removes the National Identity Card Commissioner from the list or organisations subject to the FOI regime. Of course this has to happen. However, the paragraph should have been drafted in a form which identifies the public authority that will maintain the Commissioner's records so that the public does not lose access to information already compiled by the National Identity Card Commissioner.

Overall what do I think of the ID card’s demise? Disappointment really, and it’s not because I will have less to moan about. There is a desperate need for an identity management scheme under the control of the individual. Labour’s attempt to force a state-controlled (neo-Soviet) monolith on an increasingly reluctant public is a missed opportunity and a complete a waste of money.

Let us hope the new guys on the block do not repeat the same mistakes. But those data sharing powers are not a good sign.

Originally published on Hawktalk, the blog of Amberhawk Training Ltd.

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