The Scottish Government has a presumption against the creation of new public bodies. Open Rights Group explains why your voice is so important to the outcome of the consultation.
Way back in 2008, then First Minister Alex Salmond gave a speech to the Scottish Parliament on simplifying government. The speech set out how the Scottish Government will reduce bureaucracy and simplify public services. The effect of the speech was the creation of a policy of presumption against the creation of public bodies unless there is a need to do so.
When the Independent Advisory Group on the use of Biometrics in Scotland laid out their 9 recommendations the Scottish Government willingly accepted 8 of the 9 recommendations. However, it paused at the call for the creation of an independent body to enhance oversight of biometrics in Scotland, reiterating the presumption against the creation of public bodies.
ORG’s Scotland Director made a freedom of information request for the criteria the Government uses to assess the need for creating a public body. The response from the Scottish Government gave some idea of the criteria they will be using [emphasis added]:
While some of these criteria are going to be based on internal assessment and value for money, these will be weighed by the demand for the proposed functions and services. There is no easier way of assessing level of demand than asking the general public if they want a body created.
That is just what the Scottish Government have been doing with the consultation on enhanced oversight biometric data. This is why your opinion matters so much and why Open Rights Group are encouraging everyone to take the time to respond. If the Government doesn’t get a sense of demand for a commissioner they may not proceed.
That would be a loss - not just on the specific question of biometrics but a wider one on building modern, effective institutions in Scotland and recognising the need to oversee the development and spread of surveillance technologies in Scotland.
When we talk biometrics we aren’t talking about what fingerprints and DNA can do now, we are also talking about what can happen in the future, when it comes to facial recognition or speech pattern, or retinas, or even gait recognition.
All of these technologies are at different stages of development, and different stages of reliability. While facial recognition is the popular category for discussion, recent reports have shown that its accuracy and reliability leave a lot to be desired, despite law enforcement in some places eagerly adopting it.
The ACLU recently conducted a test on Amazon’s facial recognition tool, the software incorrectly matched 28 members of Congress against mugshots, identifying them as other people who have been arrested for a crime. Big Brother Watch released a study earlier this year on the trials of facial recognition which showed pitiful returns on accuracy in the trials by South Wales Police and Metropolitan Police. These studies throw up a real question of the accuracy and validation of biometric surveillance technology, against the interference with fundamental rights that they represent.
Validation is one of the General Principles that the Code of Practice for enhanced oversight of biometrics requires to be assessed. A commissioner would be in a position to ask some serious questions about the validation behind the next generation of surveillance technology. Without the body, we risk creating a box ticking exercise out of these rules.
Effective surveillance oversight comes from effective actors. The need for new rules have been accepted by the Scottish Government, but the jury is still out on the need for a commissioner to apply the rules. It is down to you to help the Scottish Government make that decision.
The consultation on enhanced oversight of biometric data closes 1 October. Open Rights Group have provided a briefing and a link to write your own submission to the consultation.