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You might have seen the Guardian which has a slight
misinterpretation.
I have attached a briefing I have prepared - plus an
explanation of the error
Charles Clarke says in his Times Article "However, I
believe that - quite apart from the security advantages - there will be
enormous practical benefits. ID cards will potentially make a difference
to any area of everyday life where you already have to prove your
identity - such as opening a bank account, going abroad on holiday,
claiming a benefit, buying goods on credit and renting a video. The
possession of a clear, unequivocal and unique form of identity - in the
shape of a card linked to a database holding biometrics - will offer
significant benefits.
Can I comment that "the audit trail could keep a record
of these checks if a card reader is used" (e.g. Joe Bloggs record could
include in the record that Blockbuster video checked his ID Card on
12/5/2014). So the ID Card database won't keep the actual transaction -
it will point to where one could find out these details
C
-----Original Message-----
From: Pounder Chris
Sent: 20 December 2004 10:56
Subject: LEGAL BRIEFING & QUESTIONS ON PRIVACY AND ID
CARDS
BACKGROUND BRIEFING ON PRIVACY AND ID CARDS
Pinsent Masons, a law firm that specialises in Data
Protection has prepared a press briefing (see below) on the privacy
issues relating to the ID Card Bill, outlining several key questions
relating to the implementation of the a national ID Card system.
In addition, Pinsent Masons has spokespeople on hand to
offer informed, independent comment and explanation on the privacy and
data protection elements of the ID Card Bill.
Our press officers (listed below) are available 24/7 if
you need any comment or advice regarding the Act and the issues
surrounding it. If we can help in any way please do not hesitate to
contact us on 01865 725 269.
------------------------------------------------------------------------
----------------------
BACKGROUND BRIEFING ON PRIVACY AND ID CARDS
Prepared by Data Protection and Privacy Practice,
published by Pinsents Masons
Key privacy issue
The main privacy concerns of the proposed National ID
Card system arise from the records contained in the database of
registrable facts. This ID Card database will have an entry for each
cardholder (55 million UK residents), and will contain up to 50 items of
personal data which can be accessed by numerous public authorities
either by consent of the cardholder or, in the case of certain
authorities, by law. Not all public authorities or other bodies who
access the database will have access to all 50 items of personal data,
it will depend on the nature of the public authority. Many organisations
will be only able to access details which check whether ID Card holders
are who they say they are. Who has access to the database, to what items
in the database and for what purpose are therefore the key privacy
issues.
The audit trail
The original ID Card consultation document ("Entitlement
Card and Identity Fraud") stated that "it is most unlikely that
entitlement information relating to specific services would be held on
the central register". Paragraph 3.29 of this document also suggested to
the public that access to the register by authorities could be subject
to warrant arrangements or judicial approval. The ID Card Bill proposes
an audit trail which can record access to specific public services.
Access to the audit trail is not subject to warrant arrangements.
The audit trail is a double-edged sword. If one is to
prosecute misuse of the ID Card database, then one needs a record of
accesses. On the other hand, such an audit trail will contain a record
of whenever the ID Card was checked by an organisation against the ID
Card database. So, for example, if a card holder registers with a GP or
attends an out-patient clinic for the first time - to use two examples
provided by Ministers - then the fact that the check is made is most
likely to be retained in the database.
Note that in this case, the audit trail does not contain
the content of the actual medical record. It will however point to a
specific clinic or GP who is likely to possess the cardholder's medical
record. The same implication arises for all services which use the card
and check the card against the database.
ID Cards can be used in relation to private sector
service provision with the consent of the cardholder. According to the
Regulatory Impact Assessment issued by the Home Office in relation to
the ID Card, the financial services industry will be encouraged to use
the ID Card for identifying purposes, for example. when opening a new
account. The use of an ID Card check against the database could trigger
a record in the audit trail which identifies contact with a particular
financial service.
Privacy problems with the audit trail
The Government has said that their intention is to keep
the records of individuals beyond their life time. Thus the audit trail
will eventually comprise a summary of a person's interaction with public
and private services where identity and/or entitlement needs to be
checked against the ID Card database - and it will point to the key
relationships between the individual card-holder and public and private
services used by that individual for the duration of the cardholder's
adult life.
However, the ID Card Bill does not require that all
accesses to the ID Card database to be recorded. The Home Affairs Select
Committee which reported on ID Cards was very concerned about the
possibility that audit trail data could be accessed by the security
services and police without leaving a trace in that audit trail.
Human Rights Act 1998 (Article 8 - respect for private
and family life)
The ID Card Bill provides wide powers to Ministers in
order to enact regulations dealing with important details about the
processing of personal data. Order making powers are usually reserved
for those uncontroversial elements which do not need detailed
Parliamentary consideration.
In the Children Bill, the same mechanism was used in
relation to the detail associated with the processing of personal data
linked to childrens' databases. In this case, the Joint Committee on
Human Rights, a Parliamentary Committee of MPs and Peers, concluded that
it is "impossible for the Committee to make any judgment about the
proportionality of what will undoubtedly constitute an interference with
Article 8". As access to the ID Card database is subject to the detail
being in regulations, the same issue will arise in relation to the ID
Card Bill. Compatibility with the Human Rights Act therefore is an
issue.
It is interesting to note that the ID Card Bill carries
a statement on its first page of compatibility with the Human Rights
Act. There was nothing published with the Bill to substantiate this
statement.
Disclosures from the ID card database
If a disclosure of personal data from the database is
sanctioned by law this kind of disclosure can qualify within the
"exemption from the non-disclosure provisions" under the Data Protection
Act (DPA). This, in effect, means that most of the Data Protection
Principles in relation to such a disclosure do not apply.
Most of the disclosures to the police, national security
agencies, tax officials from the ID Card database will follow this
route. The Bill requires such a disclosure has to be in "connection
with" the duties of the Inland Revenue Commissioners, police, security
services etc. By contrast, the Regulation of Investigatory Powers Act
uses a test of "necessity" in connection with disclosure of
communications data to these authorities, whilst the DPA itself requires
a test of failure to disclose causing "prejudice". The test of
"connection with" is not as high as in other legislation.
As is well known the police and security services have
wide ranging exemptions from data protection, human rights and freedom
of information legislation. The issue of supervision of such bodies is
therefore important. The Bill provides for a Commissioner who reports to
the Home Secretary in relation to this function. Supervision of the
national security use of the database is separate to these two.
Data Protection Act 1998
In its original consultation, the Government stated that
ID Card was about establishing identity and entitlement to services.
These original purposes are in the ID Card Bill, and have been augmented
with a new purpose: the "purpose of securing the efficient and effective
provision of public services" (i.e. any public service), where the
purpose may not be limited to the public service which requires the Card
to be checked.
Most of the Data Protection Principles are phrased in
terms of "purpose". So for example, if a problem relates to personal
data which is "relevant for the purpose of immigration" (the Third
Principle) this can be assessed to see whether a particular item of data
is indeed relevant to a precise purpose. Note that the broader the
purpose, the more difficult this assessment becomes - for instance, a
broad purpose such as "purpose of securing the efficient and effective
provision of public services" would make it difficult for the
Information Commissioner to enforce the relevant Principle dealing with
relevance.
The issue in respect of the Data Protection Act, is not
whether the Act applies, it is how the Act applies. Further details of
the data protection problems associated with the ID Card scheme can be
obtained from the web-site of the Information Commissioner
(www.informationcommissioner.gov.uk
<http://www.informationcommissioner.gov.uk/> ).
The future
Once the ID Card database is established, its use for
other purposes will arise. For instance, the Office of National
Statistics is currently considering whether a population register can be
assembled from the ID Card database and the databases of all children
which are established under the Children Bill. This population register
could then be available to help public authorities in general - for
example to secure the efficient use of public services. The Department
of Health has announced that it is considering the relationship between
the card which is to replace E111 (the form you fill in for access to
health services within the European Union) and the ID Card. Most
organisations want to exploit their data assets - it is reasonable to
assume that the ID Card database will be no different.
The Bill contains a general order making power for the
Secretary of State to allow further disclosures without consent of the
individual cardholder. These could fit in with future plans for the
database.
SOME KEY PRIVACY QUESTIONS
1. How is each Data Protection Principle going to apply,
in practice, to the protection of personal data in the ID Card database?
2. How does the obligation to respect private and family
life under the Human Rights Act apply to:
* - Disclosures from the
database which are made "in connection with" for specific purposes
* - Disclosures of the
audit trail to the police or security service which may not be traceable
or recordable
* - The concept of
consent used in the Bill when the ID cardholder has to obtain a Card and
may be required to produce it to obtain a service
3. Is there effective independent supervision of the
uses of the ID Card Bill when:
* -The ID Card
Commissioner reports to the Home Secretary
* -The Information
Commissioner, ID Card Commissioner and the supervisory mechanisms
associated with national security are all involved in the privacy
protection business
* -The Information
Commissioner has no power to audit the ID Card database.
4. What are the plans for the ID Card database including
audit trail in relation to wider service delivery and how does it fit in
with other plans (e.g. of the ONS to create a population register from
which all public services can update their records). Should these be
debated as an integral part of the ID Card Bill goes or are they
separate matters?
5. Did the original public consultation give undue
prominence to the ID Card rather than privacy concerns over the database
and could this have contributed to the emergence of concern over privacy
matters?
Pinsent Masons press office contacts:
Joshua Van Raalte
Tel: 01865 725 269
Mobile: 07808 734 622
Richard Leonard
Tel: 01865 725 269
Mobile: 07887 568 930
www.pinsentmasons.com <http://www.pinsentmasons.com/>
www.OUT-LAW.com <http://www.out-law.com/>
About Pinsent Masons:
Pinsent Masons has been providing advice and training to
public organisations on the Freedom of Information Act for the past four
years, and has recently become the the first FOI Act training provider
to be formally offered full accreditation by the Information Standards
Examination Board. It has also produced an interactive e-learning
programme to educate and inform public sector employees about the
implications of the Act, and has developed a training package to assist
Scotland's public authorities in becoming compliant with the Freedom of
Information (Scotland) Act 2002 for the Scottish Executive.
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