Commissioners Quarterly Newsletter No 4: March 2022

I commenced my term as Commissioner in late April at a point when Scotland was still in level four lockdown. Designing and delivering an entirely new function from the ground up whilst working remotely during a pandemic has been ‘challenging’ to say the least.

Over the period my first 4-year Strategic Plan was laid before the Scottish Parliament and I consulted widely on a National Assessment Framework for biometric data, and on a draft Code of Practice.

Critical dependencies and associated legal obligations meant that my staff recruitment was not complete until January 2022. The final stage of the functional build to April now focusses on designing our corporate policies, procedures, and schemes of governance and accountability.

In our December newsletter I highlighted that we had commissioned ScotCen to conduct a public attitudes and awareness survey in Scotland to ascertain what a selection of the public ‘know’ and ‘feel’ about the use of biometric data for policing and criminal justice purposes in Scotland.

This is to help us in discharging our function under section 2 (3) (b) of the Scottish Biometrics Commissioner Act 2020 to promote public awareness and understanding of the powers and duties of the bodies to whom our functions extend, and as a precursor to further public consultation on our draft Code of Practice.

In the survey we asked a series of broad questions to ascertain views on things like legal powers, retention periods, independent oversight, how biometric data contributes towards deterring and solving crimes, views on the potential future use of facial recognition technologies to help identify people wanted by the police, and views on the use of biometric data relative to children and young people.

The survey fieldwork is now finished, and 1144 respondents completed the eight questions in our survey. The responses to the eight distinct questions are currently being analysed and cross-tabulated by ten demographic factors.

Although our sample of 1144 respondents is statistically significant, it does not necessarily mean that the views expressed are capable of generalisation to the wider Scottish population. Nevertheless, provisional results suggest important levels of public confidence and trust in the use of biometric data and technologies for policing and criminal justice purposes in Scotland.

We will publish a report with full findings from the survey in the Spring.

Between October and December 2021, we consulted extensively on a draft Code of Practice receiving positive feedback on the product from a broad range of statutory and non-statutory consultees. An updated draft is now with Scottish Government Officials, and I have asked for Ministerial consent as required by section 11 (1) of the Scottish Biometrics Commissioner Act 2020 to lay the draft before the Scottish Parliament for consideration in the spring.

The third meeting of my professional advisory group took place on Friday 25^th March 2022. The Terms of Reference and agendas and minutes from the advisory group meetings can be found on our website. See for example:

https://www.biometricscommissioner.scot/publications/advisory-group-minute-of-meeting-of-19-july-2021/

Discussions are ongoing between Scottish and UK Governments with a view to seeking agreement on the terms of draft regulations under Section 104 of the Scotland Act, to extend the functions of the Scottish Biometrics Commissioner to include UK-Wide policing bodies operating in Scotland.

If approved, this would enable biometric data collected in Scotland by British Transport Police (BTP), the National Crime Agency (NCA), and Ministry of Defence Police (MDP) to fall within the jurisdiction of the Scottish Biometrics Commissioner and our forthcoming statutory Code of Practice.

Governments around Europe and the world are now investing significantly in new biometric surveillance tools for policing and security. But who really decides where the balance lies and just how far we should submit to public space surveillance and artificial intelligence? A major concern in some jurisdictions is the lack of independent oversight as scrutiny is sidelined in the quest to bring new commercially sponsored technologies to market.

In October 2021, the European Parliament called for a ban on the police and judicial authorities using facial recognition in the EU where it takes the form of mass surveillance in public spaces:

https://www.theparliamentmagazine.eu/news/article/meps-back-ban-on-aidriven-mass-and-indiscriminate-surveillance

The UK of course is no longer part of the EU and police bodies in other UK Jurisdictions continue to experiment with live facial recognition technology in public spaces. In June 2021, the then UK Information Commissioner Elizabeth Denham stated “I am deeply concerned about the potential for live facial recognition technology to be used inappropriately, excessively or even recklessly. When sensitive personal data is collected on a mass scale without people’s knowledge, choice or control, the impacts could be significant.’

https://ico.org.uk/media/2619985/ico-opinion-the-use-of-lfr-in-public-places-20210618.pdf

In February 2020, just prior to the passing of the Scottish Biometrics Commissioner Act, Members of the Scottish Parliament (MSPs) warned that there would be no justification for the police in Scotland using live facial recognition technology:

https://www.bbc.com/news/uk-scotland-51449166

Notwithstanding contemporary debates around mass public space surveillance, there are several potential operational scenarios where, with appropriate safeguards, independently assured technologies could benefit both policing and society. These and other related themes will be discussed in a symposium on 6 April being hosted through the RSA Network in Scotland. Speakers include Iain G Mitchell QC who leads on surveillance and biometrics for the Council of Bars and Law Societies of Europe (CCBE), and Professor Kirstie Ball, St Andrew’s University, and co-director of CRISP the Centre for Research into Information, Surveillance and Privacy. I will open the session with some introductory thoughts on biometrics in Scotland, focusing on the importance of independent oversight to strengthen democratic participation and accountability.

In addition to my regular meetings with the biometrics and policing and criminal justice community, I have other important meetings scheduled this quarter that may be of interest to readers. These include meetings with John Edwards the new UK Information Commissioner (ICO). Professor Paul Taylor the National Policing Chief (NPCC) Scientific Advisor, and with Professor Sue Black, Baroness Black of Strome, who in addition to being a member of the House of Lords has worked extensively with policing in the fields of forensic science.

For further reading visit our website: https://www.biometricscommissioner.scot/

There are many other reference sources available to assist readers in engaging with debates on biometric data and technologies more generally. We do not endorse materials on other websites but simply signpost the following short selection as sources of additional information:

I hope that this short newsletter is of interest. You can subscribe to future newsletters and annual reports automatically by registering on our website https://www.biometricscommissioner.scot/contact/