The Chair of the Scottish Police Authority had suggested critics of Police Scotland's cyber kiosk roll out were living in a time warp and peddling "sensationalist" human rights fears. ORG responds
Over the weekend, the chair of the Scottish Police Authority (SPA - the body overseeing Police Scotland), Susan Deacon, said that critics of Police Scotland’s roll-out of cyber kiosks were living in a “time warp” and peddling “sensationalist” human rights fears. Deacon called the hearings and questions the Sub-Committee on Policing had asked of the kiosks a “distraction” and said oversight of Police Scotland should return to the SPA. Ultimately Deacon asked for everyone to move on.
Since Open Rights Group has been one of the groups raising concerns about the cyber-kiosks, we feel these remarks are worthy of response. We’ve identified three time warps that Susan Deacon’s remarks seem to be stuck in, so let’s do the time warp again, and again, and again.
Police Scotland maintain that their legal basis for the cyber-kiosks is clear, foreseeable and compatible with the rule of law. This is backed by a legal opinion by Murdo Macleod QC. However, the cases that Police Scotland rely on in support of their conclusion have dubious relevance and applicability to modern technology.
The first case, involving the seizure of an iPhone in 2016, didn’t even discuss the merits of a search of a device and was thrown out by the court because the facts of the search did not line up to the arguments put forward by the defendants.
The second case, Rollo v. HM Advocate (1997), asked what a “document” meant according to technology available at the time. The technology in question was a memomaster palm pilot that contained a basic store of numbers and calendar entries and had a storage capacity of 34 kb. Police Scotland cite this case to provide clarity on the scope and intrusiveness of searching an electronic device. However, an iPhone XR stores texts, locations, photos, notes, contacts, and call logs and has a storage capacity of 64Gb minimum. 64Gb is the equivalent of 35,555,555 Memomasters.
The information stored on a contemporary electronic device is exponentially more vast and deep than any piece of technology that has come before it. The idea that we can draw equivalence between a Memomaster and technology like a smartphone without considering the proportionality is ludicrous.
In backing the legal opinion and position of Police Scotland, Susan Deacon maintains that current processes available to Police Scotland for seizing devices by consent is suitable. This concerningly fails to acknowledge the very real concerns raised around how consent can be explicitly and freely given in a digital scenario.
Witnesses and victims in England have reported feeling threatened or pressured into giving up their phone by police during criminal investigation procedures. The cyber-kiosk trials held in Edinburgh and Stirling in 2016 involved devices being seized without informing individuals that their devices would be searched via these kiosks. How either of these two crucial factors could be looked at and the issues raised lead an individual with the responsibility of holding Police Scotland to account to bat away concerns as sensationalist beggars belief.
The suggestion that scrutiny of policing by the Sub-Committee and others were a distraction and that oversight of Police Scotland should come from the Scottish Police Authority as the primary supervisor fails to reflect where the SPA was only two years ago.
During 2017 and 2018, the SPA was embroiled in a series of scandals over its lack of transparency, its failure to hold Police Scotland to account and its treatment of employees. The SPA had failed to adequately scrutinise Police Scotland spending according to Audit Scotland, and Her Majesty’s Inspectorate of the Constabulary Scotland, an independent review body, described the SPA’s leadership as “dysfunctional” in trying to hold board meetings in private and restrict media access to papers. Described as spineless, toothless and pointless, the Scots Police Authority drafted in Susan Deacon.
This is not the recent record you would want to see from any institution with the primary oversight of the second largest police force in the United Kingdom. Bit of a rocky horror (picture) show.
It is disappointing that these remarks were made by Susan Deacon at all. Since the troubling trials of the kiosks, Police Scotland has embarked on a significant consultation exercise with stakeholders including Open Rights Group and sought to try and improve their policies. Open Rights Group had praised this work in the past. Susan Deacon knows of this praise too; in fact she referred to it in previous committee hearings.
Open Rights Group are not here to stop police adopting modern technologies and seeking to improve their crime-fighting capability. However, we will stand up against the introduction of invasive technology that apply standards based on outdated technological capabilities, and that fail to consider evolving societal expectations or reflect on what effective oversight should look like.
The only time wapr that Scotland risks being stuck in is one that fails to acknowledge that for policing, the modern times we live in require modern standards, modern undertanding and trustworthy oversight.