Under the Public Order Act it is a criminal offence to act in a way that is threatening, disorderly, abusive or which constitutes harassment.  However, Section 5 of the Act also makes it an offence to use language that could be deemed insulting.

The Reform Section 5 campaign, and Big Brother Watch, believe that this is a step too far.  Take the case of an Oxford University student who, when out celebrating the end of his exams, approached a policeman and exclaimed ‘Exuse me, do you realise that your horse is gay?’.  What should have been taken as a silly remark and ignored turned into an £80 fine, detention in a police cell overnight and a court appearance when he refused to pay the fine.  The case was eventually dropped.

There was also the case of a street preacher who, armed with a placard detailing the Bible’s condemnation of homosexuality, was fined £700.  This was condemned by the gay rights campaigner Peter Tatchell as an ‘outrageous assault on civil liberties’ and Peter is also supporting the campaign.

These are just two of the growing list of examples that highlight the lack of common sense that has prevailed under Section 5.   The idea that you should risk prison for insulting someone is absurd in a modern, democratic society.  Section five has extended the criminal law in a way that stifles free speech and it is absolutely essential that we stop making criminals of people with different opinions.

Clearly, nobody enjoys being insulted but, as David Davis puts it, ‘nor does anyone have a right not to be insulted.  Freedom of speech includes the right to criticise, to ridicule and to offend.’  The Section 5 campaign see the way forward as being clear: it is not the job of the police and the courts to prevent people’s feelings from being hurt and as such simply revoking the word ‘insulting’ from Section 5 would not only allow the legal protection of individuals from genuinely abusive and threatening behaviour but would also eradicate the current confusion and controversy.

Figures have suggested that around three in ten secondary schools presently use biometric data as a means of identification, paying for lunch, or to record attendance.  The new guidance from Ministers says that they will be required to ask for written permission from a parent before they collect the students’ biometric data.  However, even if a parent agrees a student would have ground to refuse to take part.

The Protection of Freedoms Act, which gained Royal Assent this month, has changed the advice given by the government on the use of biometric data.  The changes mean that where a pupil or parent refuses to consent then the school or college must provide alternatives.  The advice is currently being consulted on, with the final guide due to be published later this year.

This announcement from the government is a welcomed step forward in granting parents and pupils the power to refuse to use biometric devices in schools.   In many cases it is clear that the real motivation for using finger print scanning or facial recognition is often to build up a database of what one person has been doing, for example allowing parents to see what a child has had for their lunch.  Schools should not be using this intrusive and expensive technology to spy on pupils and these moves will make a real difference to protecting pupil’s privacy.

As reported in today’s Evening Standard, the Metropolitan Police last year spent £4.1m on staff costs in its Visual Images Identifications Detection Office units,

The rampant use of CCTV across London isn’t just a blight on privacy, it’s also soaking up scarce police resources that could be put to better use in preventing crime. And when seen in context of the Met’s own research highlighting how 1,000 CCTV cameras solve less than one crime per year in the capital, it is further concern that CCTV is not being used either proportionately or effectively.

Earlier this year our report on CCTV spending, The Price of Privacy, called for five policy changes to improve the accountability of CCTV. Two of our key recommendations would add a large degree of clarity to the debate and enable the public to decide if this is value for money and a justification for the huge number of CCTV cameras in London. The two changes we called for were:

• Require any publicly funded CCTV installation to refer to crime statistics or demonstrate a significant risk of harm before being commenced
• Require public bodies to publish the instances where their CCTV cameras have been used in securing a conviction, and for what offences 

If the Met published statistics on how many convictions were secured by these units then the public would be able to see how effective they were in improving public safety. Equally, it is important to remember many of the cameras in London are not controlled by the Met – nearly 100,000 are controlled by Transport for London and local councils – and if data was made available on the crimes these cameras were intended to prevent, the public could see for themselves whether it is really an effective tool or an unwarranted intrusion on their privacy.

“Ceop … received intelligence of unique internet addresses from the UK who had accessed child abuse material,”

“Because some of that communications data was not available, nine out of 41 members of an international paedophile ring could not be traced.”

So. They had unique addresss of the UK members. The police could have secured a warrant, siezed the computers of the people identified and recover the data on their PCs and analyse it.

Alternatively, the Home Secretary could sign a warrant and they could put every one of the known people under surveillance, monitoring their internet use and watching who they communicate with.

If this was not possible, because of technical measures put in place by the paedophiles, then I struggle to see how the Communications data plans would solve the issue. Equally, as soon as ISPs are told to log extra data those seeking to use the internet for wrongdoing will take the relatively trivial steps to conceal their activity.

It is wholly wrong to say the only way of bringing these people to justice is to rely on monitoring what every internet user does.

This is exactly the same kind of scaremongering that we saw around 90 day detention, ID Cards and countless other ‘national security’ policies that were rightly rejected as being an unneccesary intrusion on privacy and ones which would make little difference to public safety. The Communications Capabilities Development Programme is such a policy.

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Update: The Daily Telegraph also reports on this example, which turns out to be five years old and may have been solved today without any additional data,

“Instead of scaremongering, the Home Office should come forward and engage with the debate about how we improve public safety, rather than pursue a policy that will indiscriminately spy on everyone online while the real threats are driven underground and escape surveillance.

“If someone is suspected of plotting an attack the powers already exist to tap their phone, read their email and follow them on the street.

“Given how little detail has been offered is it any wonder that the public are scared by a proposal for online surveillance not seen in any other Western democracy?”

“My Government intends to bring forward measures to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards to protect the public, subject to scrutiny of draft clauses.”

So there we have it – the Communication Capabilities Development Programme will have it’s day in Parliament. We don’t know what the draft clauses will be or when we will see them, but the Government remains intent on pursuing legislation in the coming session of Parliament.

If someone is suspected of plotting an attack the powers already exist to tap their phone, read their email and follow them on the street. Instead of scaremongering the Home Office should come forward and engage with the debate about how we improve public safety, rather than pursue a policy that will indiscriminately spy on everyone online while the real threats are driven underground and escape surveillance.

The Home Office have been very good at saying what the problem is, but seem intent on keeping the technical details of what they are proposing secret. Is it any wonder that the public are scared by a proposal for online surveillance not seen in any other Western democracy.

They also seem keen to avoid talking about the Black Boxes for real time monitoring capability that we still believe to be part of the plans.

Whether it is a draft Bill or not, if the Home Office needs to tread very, very carefully when it comes to proposing a level of online surveillance not seen in any other Western democracy. The proposals will rightly be closely scrutinised in Parliament and I hope the Conservatives fulfil their commitment to immediately give the plans to the Information Commissioner for pre-legislative scrutiny.

It’s far from clear this is technically possible, with encrypted messages, virtual private networks and onion browsers increasingly part of ordinary people’s online habits. Equally, the ‘black box’ measures risk introducing new security vulnerabilities into the UK’s critical national infrastructure. There’s also the pressing question of what the Bill will propose that isn’t already possible under the Regulation of Investigatory Powers Act.

And given that Lord Leveson is only beginning to explore how personal data was illegally obtained from private companies, I’m sure there are many MPs who will want to know how proposal isn’t going to create a huge new risk of people snooping on what politicians, celebrities or members of the public do online.

Before the election the Conservative policy on this was “immediately submitting the Home Office’s plans for the retention of – and access to – communications data to the Information Commissioner for pre-legislative scrutiny.” We don’t know if this has happened.

A draft bill will not offer the same wide-ranging consultation as an ordinary white paper, but there is still a long way to go before this becomes law, if indeed it does. Big Brother Watch will be working closely with privacy and civil society groups to ensure that proposals are scrutinised and if it is the illiberal, intrusive and indiscriminate measure we fear we will work tirelessly to ensure it does not pass into law.

You can also download our key issues briefing and our full briefing.

We warned earlier this year that with more than 3,500 organisations able to perform almost three million CRB checks directly, without needing to prove consent it would be easy for extra checks to be done at the behest of private investigators, journalists or staff.

We also highlighted last year how more than 900 police officers and staff had been disciplined for breaching the Data Protection Act, with many of them responsible for unauthorised searches on the Police National Computer.

Let’s be clear – it is an offence under Section 55 of the Data Protection Act to unlawfully obtain personal information. The idea that ‘nothing can be done’ in relation to the private investigators and their clients is wholly wrong.The Information Commissioner’s Office made clear in it’s most recent report, What Price Privacy Now, the scale of the trade in personal information was and remains a serious problem.

Big Brother Watch continues to call for custodial sentences to be available for those found guilty of a S55 offence. It is remarkable that in an age of digital by default the huge amounts of personal data held by the state, private companies and other individuals and organisations is not protected by the deterrent of jail time.

We also believe that this episode highlights the danger of making large amounts of data available quickly in the name of ‘convinience’ but at the cost of privacy. Without proper audit trails and individual accountability, the rush to electronic systems and large databases continues to pose a clear threat to privacy that cannot continue to be ignored any longer.

There is a more fundamental point to the debate – the only way it can possibly work is if the state monitors everything we do online, so they can disrupt those trying to avoid the filters and prevent in real time people accessing content.

In an entirely coincidental thought, today’s quote from the day comes from Chinese State media:

“The open discussion of containment of the Internet in Britain has given rise to a new opportunity for the whole world. Media in the US and Britain used to criticize developing countries for curbing freedom of speech. Britain’s new attitude will help appease the quarrels between East and West over the future management of the Internet.”

Both the causes are laudable ones – tackling piracy and protecting children from explicit imagery. However, Big Brother Watch cannot support the principle of blocking content as described in either model. In both cases, there is a perception that ISPs have the ability to regulate every packet of data that pass their networks, and therefore stop people accessing certain websites.

This is a dangerously flawed interpretation of how the internet works and for it to work and have any meaningful way it requires everything we do online to be monitored. Of course, it is entirely coincidental that the Communications Capbailities Development Programme would be a step towards that.

There are those in Government who recognise this. Foreign Secretary William Hague last year stated that “It is important to distinguish between government encouraging people to make more use of existing protections as a matter of choice, and the government deciding what people can and cannot do online” and his sentiment was echoed in today’s Telegraph by Francis Maude, who warned against  “state intervention that would stifle growth and the free exchange of ideas at its heart.”

They are right. Network level blocking is not the silver bullet may have portrayed it to be. Easily avoided, it is a crude tool that carries serious risks, from blocking legitimate business content to introducing new security risks into the internet. Indeed, in a 2011 report into site blocking, Ofcom concluded:

“Circumvention of a block is a technically a relatively trivial matter irrespective of which of the techniques used. Knowledge of how site operators and end users can work around blocks is widely distributed and easily accessible on the internet. It is not technically challenging and does not require a particularly high level of skill or expertise.”

Furthermore, the White House’s top technical and cyber security experts warned that web-blocking through DNS interference (the bit of the internet that connects the address you type to the digital address of the data you want – which is how you block access to www.example.com ) would create new security risks. They said:

“We must avoid creating new cyber-security risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cyber-security and yet leave contraband goods and services accessible online.

So, why do so many people still call for a system that is easily circumvented system that creates new cyber security risks?

Beyond that, it’s important to remember blocking does not remove content from the internet, it merely makes it less easy to access through a web browser. Equally, it is much harder to circumvent software installed on a PC than network filtering but invariably the debate is focussed on the Government deciding what can and cannot be accessed. It’s also useful to note there is still no known successful implementation of network level filtering outside of China or Iran. In March 2011 Dutch ISPs abandoned their own blocking programme after evidence showed the level of material did not fall, it merely moved off websites.

Web-blocking is a crude tool that does not prevent determined users accessing content. The broader consequences risk damaging legitimate businesses and undermining cyber security while further perpetuating the myth that this is an easy technological solution to a complex problem. Ultimately the risk is that ISPs will be expected to monitor everything their customers do online to ensure they are not doing something they should not be. Indeed, it is almost inevitable certain groups will call for this when web blocking is exposed as the ineffective and easily avoided instrument it is.

Big Brother Watch believes the solution lies with greater device-level controls and law enforcement action aimed at those storing data or funding services that contravene the law. It would be unacceptable for the failiure of technically naieve policies to be used as justification for detailed monitoring of our internet use.

So, if you’re calling for network level blocking of websites, either call for the Great Firewall of Great Britain and have the state monitor everything we do online, or find a solution that actually works.

Follwing an investigation the Federal Communications Commission (FCC) fined Google $25,000 for the unauthorised data collection between May 2007 and May 2010. As part of that investigation, they found that the engineer who designed the software specifically intended to collect and analyse the data.

Highlighting the intent and capability of the ‘spi-fi’ device attached to Street View cars, the engineer carried out a test aimed at finding people’s browsing history from the data.

The FCC investigation also found Google guilty of obstructing it’s investigation.

In the UK, there was an investigation into the collection of data leading to an undertaking being issued by the ICO. In their press release, the ICO stated “there was a significant breach of the Data Protection Act when Google Street View cars collected payload data as part of their wi-fi mapping exercise in the UK” but no monetary penalty was issued.

What is not clear is if the ICO’s decision was based on assurances that the collection was a result of a ‘lone engineer’ and not a corporate decision. The Information Commissioner should urgently take steps to ensure Google did not mislead him when he investigated this issue in the UK.

It appears Google deliberately and without remorse spied on people’s wifi networks and has now been caught trying to cover it up. The continued thirst of big-data companies for personal information is a serious threat to privacy and all too often consumers find themselves without redress when their rights are compromised.