DOCILE surveillance

As the result of an accident, I have discovered a very nasty loophole in The Regulation of Investigatory Powers Act 2000 (RIPA). The loophole is this. No matter how severely surveillance may intrude upon privacy, it nevertheless fails to satisfy the RIPA's perverse definition of "intrusive" surveillance unless the surveillance is also covert, which is say that is conducted in a manner calculated to ensure that the individuals under surveillance do not become aware that they are, or may be, under surveillance.

A change in the law is urgently needed. That's because the loophole opens up the possibility of serious human rights abuse on the government's part. It allows to go completely unregulated any surveillance operation that exploits the loophole by failing to be kept covert.

I suggest we start calling these operations "DOCILE surveillance operations", as a convenient abbreviation. The word "DOCILE" here is an acronym. DOCILE surveillance is

Deniable, Overt, Classified, Intrusive and Legislation Exempt.

DOCILE surveillance is

Deniable because the victim is unable to obtain
evidence he could use in court to prove
that the surveillance is taking place

Overt because the perpetrators deliberately make
sure that the victim realises that he is
under surveillance

Classified because the Official Secrets Act covers the
surveillance, so the victim has no right to
know officially that the surveillance is
happening and hence is never be in a
position take the government to court to
protect his privacy

Intrusive because the surveillance would satisfy the
definition of intrusive surveillance
given in RIPA, but for the fact that the
surveillance isn't "covert"
Legislation
Exempt because the surveillance escapes the need
to be regulated under RIPA, because the
perverse definition of "intrusive"
surveillance given in RIPA says that
surveillance isn't considered "intrusive"
for the purposes of RIPA unless it is
covert, no matter how severely the
surveillance might intrude upon the
victim's privacy.

To put it all very simply, the government is pretending that The Investigatory Powers Tribunal now regulates spying on people. They are pretending that there is always something you can do about it nowadays if you suspect that your bedroom is bugged. (Bugging your bedroom, by the way, is achievable nowadays without putting a bugging device in your bedroom, where you might find it.)

To get round the new law is child's play. All the security services have to do is deliberately to contact you (deniably) and tell you that they are bugging you or watching you. Once they do that, their operation ceases automatically to be subject to the new law! The government is therefore being dishonest when it claims that the new law protects adequately the rights of victims of surveillance.

The whole scam is still covered by the Official Secrets Act though, so you cannot prove anything. If you keep telling people you've had a tip off from the security people that you're being spied on, you'll likely end up locked in a mental hospital sooner or later.


What would be wrong with DOCILE surveillance?

There are two grave objections to DOCILE surveillance that apply to all possible uses.

Firstly, it would be an invasion of privacy, potentially contrary to the qualified right to privacy declared in Article 8 of the European Convention on Human Rights. The fact that it was "legislatively exempt" would remove it from the scope of the RIPA requirement for regulation. So there would be nobody who was authorised to check that the invasion of privacy wasn't disproportionate, in other words that it wasn't a "sledgehammer to crack a nut" when compared with any risk that the subject and any habitual misconduct of which he was suspected posed to the well-being of a democratic society.

Secondly, DOCILE surveillance it would create a prima facie case to answer of disproportionate infringement of the Article 8 qualified right to privacy. The deniability and the classification would conspire to deprive the subject of the right to seek a legal remedy against, as Article 13 puts it, "those acting in an official capacity".

As we'll see later, under UK law there is a third objection to DOCILE surveillance operations applicable only to a certain type of operation. However, the type of DOCILE surveillance operation to which the new objection would be applicable would be precisely the type of operation that a government might be most tempted to undertake in the first place.


Why do it?

Wouldn't making sure that the subject realised that he was under surveillance be counter-productive? That might be the case whenever the purpose of surveillance was catching the subject committing some crime red-handed. But what if the purpose of the surveillance were slightly different? What if the purpose of the surveillance was actually to prevent the subject from committing crimes?

In this scenario, the security services might call upon the services of experts in psychology, in a bid to improve the effectiveness of their efforts to prevent crime. They might be advised to try to foster, in the subject, mistaken beliefs that the surveillance was more intensive and ubiquitous than it actually was. For example, they might be advised, in the next of their anonymous contacts with the subject, to say, "We are watching you all the time" when, in reality, the security services were merely able to listen to the subject - and to do even this only some of the time.

Following the advice of behavioural experts, the security services would be trying to alter the subject's behaviour, to this end deliberately creating in the subject an awareness of being under surveillance, possibly an exaggerated awareness. What we are considering here is nothing less than the use of DOCILE surveillance as a psychological treatment, for behaviour of which the government disapproves.


Would such treatment be lawful?

We have already considered the two, powerful objections that apply to all DOCILE surveillance, which are based upon Articles 8 and 13 of the European Convention on Human Rights. There is a further objection under UK law to the use of DOCILE surveillance as a treatment.

It is likely that in using DOCILE surveillance as a treatment the security services would be acting in implementation of Executive decisions, taken in exercise of what in UK law is called the Royal Prerogative, rather than acting under the authority of any primary legislation. But there exist statutory provisions that permit the making of treatment orders. The idea that the Executive possesses a Royal Prerogative power to order treatment therefore conflicts with the legal principle first stated in the judgment given in the now famous DeKeyser Hotel case, that the Royal Prerogative is abridged by the existence of competing statutory provisions in a particular subject area.


Could two-way devices be used?

We may be fairly confident in guessing that the security services nowadays could develop technology so miniature that it would be virtually impossible to find, hidden in a subject's home, car or clothing or about his person. Such devices might include microphones that enabled the security services to listen to a subject's speech when he was conversing, thinking aloud to himself, or, for that matter, when praying audibly to his god.

It need not strain our credulity to speculate that the security service might soon be able to incorporate into such a device not just a microphone, but a miniature speaker too. Granted the speaker might not enable the security services to join in with the subject's conversations. If it were large enough to deliver sounds loud enough to be consciously audible, it wouldn't be miniature enough for the device to remain unobtrusive. However, a sufficiently miniature speaker might be capable of delivering subliminal messages. The potential for human rights abuses from using DOCILE surveillance coupled with subliminal influence is serious indeed.

The human rights abuse potential appears even more alarming when one considers that it cannot be long now before someone will develop a device that won't need to have built into it either a microphone or a speaker, because it will be able to interface more directly with the verbal reasoning activities of the subject's central nervous system.

We have already witnessed technology that enables chimpanzees to move mouse cursors on computer screens, just by willing the cursor movement to occur. In other words, mankind has already successfully interfaced technology with the spatial reasoning of chimpanzees. I'd gladly place a bet that interface with the verbal reasoning of humans have already been developed, or will be developed in the not-too-distant future.

On second thoughts, let's not refer to it as "the not-too-distant future". It is a future nowhere near distant enough for my liking.


Wouldn't this all be too expensive?

Mercifully, it will probably always be deemed far too expensive for the government to employ members of the security services to undertake DOCILE surveillance (and maybe also subliminally to influence) a large proportion of the civilian population. Doesn't this consideration therefore render groundless the fear that everybody who belonged to a political or religious group deemed to be "fringe" might one day find their human rights abused by a DOCILE surveillance operation?

Such a fear is, alas, far from groundless. That manned DOCILE surveillance and subliminal influence would be uneconomic to deliver on a widespread scale might become the factor that stimulated investment to develop software sophisticated enough to automate DOCILE surveillance (probably coupled with subliminal influencing). The software would merely need to be able to interpret (unmanned) the output of verbal reasoning centre listening devices. It could then monitor very cheaply quite a large number of targets for the occurrence of taboo thoughts.

The software would respond to thoughts that needed "correction". For thoughts as relatively harmless as the mere contemplation of travelling on a bus without paying the fare, the appropriate response would be to attempt to dissuade, subliminally. More serious taboo thoughts would call for the alerting automatically of members of the security services, who could then switch that subject onto manned DOCILE surveillance and influence.


The most tempting application of all?

In what possible applications of DOCILE surveillance might be a government one day be tempted to engage? One such application probably springs to mind almost immediately, the monitoring and treatment of known paedophiles.

For the sake of their child victims, no right-thinking person wants to have to wait for paedophiles to be caught red-handed, in the process of committing their crimes. It would be far better to deter the paedophiles, if possible. That is why I think that this is perhaps the most likely first application of DOCILE surveillance.

Does using DOCILE surveillance to monitor and to treat known paedophiles sound like a good idea? If you think so, I suggest you think again.

The only acceptable definition in a liberal democracy of a "known" paedophile should be a paedophile who has already been tried and convicted of a paedophile offence. Anyone else is, at worst, merely a paedophile suspect. We ought never, without trial, subject even paedophiles to what they would probably experience as a punishment.

To be aware of surveillance, but unable to prove it, would be to live in constant apprehension of being misdiagnosed and treated compulsorily for a psychotic condition that produced paranoia; a condition from which one knew that one did not suffer. It would be to suffer constantly from an iatrogenic symptom akin to paranoia. To be aware of the surveillance, but to be unable to put a stop to it, or to know reliably when it might stop, or even that it had stopped, would be to live with the constant perception that one had perhaps forfeited privacy for the rest of one's natural life.

Make no mistake. To be on the receiving end of DOCILE surveillance, with or without any attempt to influence subliminally, would be a punishing experience for anyone. As a punishment, it is certainly quite unusual. Arguably, it is also a rather cruel, especially if the subject turns out not to be a paedophile after all. The British government is not allowed to impose cruel or unusual punishments on its own citizens, even after due process. Without due process, it is not allowed to impose any punishment.

The paedophile problem is one that most of us, whether we have young children of our own or not, quite naturally think of one of the worst problems that society faces. But it is also the best problem there is, from the point of view of a government looking for a pretext for taking upon itself "state of emergency" powers to trample willy-nilly upon the fundamental human rights of its own citizens.


A slightly sinister conspiracy could easily turn into a gravely sinister cock-up

I invite you to imagine with me a hypothetical nightmare scenario, albeit, a scenario that is not so fanciful that you can be confident that it couldn't happen, or even that it hasn't happened already.

Imagine that somebody who wasn't a paedophile at all became, as the result of a mistake on the part of the security services, the subject of a top-secret DOCILE surveillance operation targeting paedophiles. Imagine that the security services recognised very quickly that this person wasn't a paedophile. Unfortunately for them, he turned out to be exactly the sort of "bleeding heart liberal" who might try to make trouble for their secret operation, perhaps applying for judicial review to challenge on ultra vires grounds the legality of the DOCILE surveillance operation itself, or challenging on the grounds of rationality the mistaken decision to include the bleeding heart liberal as a subject of the operation.

How long do you think it would take before whole host of "pragmatic" reasons were found for continuing to keep the bleeding heart liberal, non-paedophile on the programme anyway?

Long after all the real paedophiles had been discharged from the programme (perhaps having quickly been treated so successfully that the security services felt confident that none of them would ever offend again), wouldn't the security services be tempted to continue the programme, now monitoring just the one remaining subject, the bleeding heart liberal - a bleeding heart liberal whom initially they'd mistaken for a paedophile and who now wanted to take the government to court to challenge an operation the government wanted kept secret? After all, his liberal political leanings would need to be monitored, in order to assess the risk he posed to national security; in other words, to protect the officially secret operation.

Whilst the security services still had to expend some of their budget monitoring the bleeding heart liberal, what harm would it also do for them to continue to treat him? Only, since he wasn't a paedophile, what would they be treating him for?

Probably the security services would take the opportunity to treat the liberal for something almost as unacceptable as paedophilia, at least to a government convinced of its own infallibility. They would find themselves treating him for the disorder of being a bleeding heart liberal in the first place. He would need treatment for being naive and idealistic enough to have moral scruples about the government using DOCILE surveillance to monitor and to treat paedophiles. As part of the treatment for the patient's rampant liberalism, the security services would assure the liberal periodically that the operation that he aspired to have reviewed judicially had saved many children from being sexually abused. Naturally, they would assure him of this whether it was true or not.

If the man's liberal views originated from supposedly misguided religious beliefs, it would probably be very tempting to the secular-minded security services to attack the problem at the root, to focus the treatment upon the naive religious beliefs that spawned the unacceptable political opinions. It might save lots of public money to discourage this man's faith. It would be seen as the likely quickest route to the security services feeling safe in taking the liberal off the expensive monitoring programme. A programme originally designed to deal with the dangerous tendencies of paedophiles would thus quickly have proved flexible enough also to deal with the dangerous religious beliefs that turned people into bleeding heart liberals.

The DOCILE surveillance would have realised, on its very first application, what the fundamentalist conspiracy theorist might conjecture was its ultimate destiny from the outset. The lessons learned from the first experiment with DOCILE surveillance would encourage the very worst tendencies found in politicians. The technique would have demonstrated its potential for use, with impunity, as a tool for keeping docile those who were religiously or politically dissident. The Thought Police would have arrived, almost unnoticed.

It's a good job that this is only a hypothetical scenario, eh? Let's all ask our MPs to amend the law quickly, so that the scenario stays hypothetical, shall we?
© copyright John Allman 2002