The ‘police power’ nuance.
The police, or anyone who processes data for the purpose of the ‘security of the State’, are given certain exceptions when it comes to fair processing of data under the law. For example, they have exemptions when it comes to how ‘transparent’ their data processing is and how long they store data for.
It makes sense for the police not to be transparent about the undercover work they do, or to hold data for years because it can be used as evidence in a related case. But, transparency can be very important in making sure police power isn't abused. A recent win in this area was when the police were forced to be transparent in California when the First Amendment Coalition won an appeal saying the public had the right to see ‘police misconduct' and 'excessive force' records that had been unavailable for decades before.
As long as data processing is ‘fair and reasonable’, a phrase that’s always open to interpretation, the police have a lot of power when it comes to data processing. Unfortunately, in reality this can lead to racist or other dangerous nuances in the law. A related article in the Guardian urged for national guidance ‘to oversee the police’s use of data-driven technology amid concerns that it could lead to discrimination’. You can read more about this in our other blog.
The same article revealed that the police take too much data from phones belonging to witnesses and victims. Whether due to an incorrect interpretation of the law, lack of resources or intentional abuse of power, the IC (Information Commissioner) says that there’s ‘excessive amounts of personal data often being extracted, stored, and made available to others, without an appropriate basis in existing data protection law’. There’s ‘little or no justification or demonstration of strict necessity and proportionality’. The article speculates that this could be deterring people from reporting crimes. ‘Hundreds’ of rape victims, continued the IC, mostly female, are ‘distressed’ when they’re forced to hand over their personal data after being warned that otherwise the suspect won’t be prosecuted. This was coined the ‘digital stripsearch’ and has since been challenged.
Essentially, the problem is trying to find a balance between law enforcement and people’s data protection rights, particularly difficult when the widespread use of technology and being able to access the data that’s generated from that is relatively new.