Pounder Chris on 20 December 2004 at 13:13 said:- > 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 > Part of the thrust of many legal arguments promotes the retention of audit trails as a means of achieving evidential certainty. Why would a national ID card database be any different? Ian W > -----Original Message----- > From: This list is for those interested in Data Protection > issues [mailto:[log in to unmask]] On Behalf Of > Pounder Chris > Sent: 20 December 2004 13:13 > To: [log in to unmask] > Subject: Re: LEGAL BRIEFING & QUESTIONS ON PRIVACY AND ID CARDS > > > The contents of this email and any attachments are > confidential to the intended recipient and may be legally > privileged. Please see the important conditions below. > > > > > 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. > > > > > > > > This message has been scanned for viruses by > MailControl > <http://www.mailcontrol.com/> , a service from BlackSpider > Technologies > <http://www.blackspider.com/> . > > > > > > > > Important > > If you are not the intended recipient: (1) you must not > disclose, copy or distribute its contents to any other person > nor use its contents in any way; (2) please contact Pinsent > Masons immediately on +44 (0)20 7418 7000 quoting the name of > the sender and the addressee, and then delete it and any > attachments and copies from your system. 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