Has the Information Commissioner’s Office lost its bottle?

Google breached Data Protection Act but faces no fine.

The news that the Information Commissioner's Office (ICO) will not issue Google with a fine for what it described as a "significant breach" of the Data Protection Act has enraged privacy advocates.

The row centres on Google's capturing of data from unsecured wireless networks via the antennae on its Street View cars, which have been touring this and other countries, ostensibly to photograph street scenes. Google said the capturing of data being broadcast on private wifi networks was a mistake, and that it is "profoundly sorry".

Yesterday the Information Commissioner, Christopher Graham, said:

"It is my view that the collection of this information was not fair or lawful and constitutes a significant breach of the first principle of the Data Protection Act. The most appropriate and proportionate regulatory action in these circumstances is to get written legal assurance from Google that this will not happen again – and to follow this up with an ICO audit."

Not good enough, say privacy advocates. A letter signed by Privacy International, NO2ID, Big Brother Watch, Action on Rights for Children and the Open Rights Group described the decision merely to audit Google in future as "the latest episode in a litany of regulatory failure that brings disrepute on the Commissioner's Office and which calls into question whether the ICO is fit for purpose".

They argue that the ICO has been inept over the Google case from start to finish. It's not the first time the office has been accused of lacking teeth.

True enough, it was a request for information by the German authorities – the ICO was nowhere to be seen – that first uncovered the harvesting of personal data by Street View cars. And though this came to light in April, the ICO only visited Google to take a look at a sample of the data it had gathered in the UK on 15 July. After that visit, it said:

On the basis of the samples we saw we are satisfied so far that it is unlikely that Google will have captured significant amounts of personal data.

It was only after news that Canada and Spain had both ruled that Google's moves had breached their laws that the ICO announced that it, too, does now believe that Google committed a "significant breach" of the Data Protection Act. Yet, despite that finding, the Information Commissioner's Office has said it won't issue a fine – it has the power to issue fines of up to £500,000 – not least because Google has promised not to do it again.

The letter from the privacy groups fumes:

The ICO has completed a full reversal of its position . . . In our view the ICO is incapable of fulfilling its mandate. The Google incident has compromised the integrity of the Office. We can think of very few substantial privacy issues over the past ten years that the ICO has championed. In most cases the Office has become part of the problem either by ignoring those issues or by issuing bizarre and destructive rulings that justify surveillance rather than protecting privacy.

An ICO spokesperson said that it couldn't issue a fine in this case because it would be hard to prove that the breach had caused "substantial harm or substantial distress". Besides, most of the payload data was captured before 6 April, when the ICO was granted its powers to impose fines of up to £500,000. Case closed.

Jason Stamper is NS technology correspondent and editor of Computer Business Review.

Jason Stamper is editor of Computer Business Review

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"We repealed, then forgot": the long shadow of Section 28 homophobia

Why are deeply conservative views about the "promotion" of homosexuality still being reiterated to Scottish school pupils? 

Grim stories of LGBTI children being bullied in school are all too common. But one which emerged over the weekend garnered particular attention - because of the echoes of the infamous Section 28, nearly two decades after it was scrapped.

A 16-year-old pupil of a West Lothian school, who does not wish to be named, told Pink News that staff asked him to remove his small rainbow pride badge because, though they had "no problem" with his sexuality, it was not appropriate to "promote it" in school. It's a blast from the past - the rules against "promoting" homosexuality were repealed in 2000 in Scotland, but the long legacy of Section 28 seems hard to shake off. 

The local authority responsible said in a statement that non-school related badges are not permitted on uniforms, and says it is "committed to equal rights for LGBT people". 

The small badge depicted a rainbow-striped heart, which the pupil said he had brought back from the Edinburgh Pride march the previous weekend. He reportedly "no longer feels comfortable going to school", and said homophobia from staff members felt "much more scar[y] than when I encountered the same from other pupils". 

At a time when four Scottish party leaders are gay, and the new Westminster parliament included a record number of LGBTQ MPs, the political world is making progress in promoting equality. But education, it seems, has not kept up. According to research from LGBT rights campaigners Stonewall, 40 per cent of LGBT pupils across the UK reported being taught nothing about LGBT issues at school. Among trans students, 44 per cent said school staff didn’t know what "trans" even means.

The need for teacher training and curriculum reform is at the top of campaigners' agendas. "We're disappointed but not surprised by this example," says Jordan Daly, the co-founder of Time for Inclusive Education [TIE]. His grassroots campaign focuses on making politicians and wider society aware of the reality LGBTI school students in Scotland face. "We're in schools on a monthly basis, so we know this is by no means an isolated incident." 

Studies have repeatedly shown a startling level of self-harm and mental illness reported by LGBTI school students. Trans students are particularly at risk. In 2015, Daly and colleagues began a tour of schools. Shocking stories included one in which a teacher singled out a trans pupils for ridicule in front of the class. More commonly, though, staff told them the same story: we just don't know what we're allowed to say about gay relationships. 

This is the point, according to Daly - retraining, or rather the lack of it. For some of those teachers trained during the 1980s and 1990s, when Section 28 prevented local authorities from "promoting homosexuality", confusion still reigns about what they can and cannot teach - or even mention in front of their pupils. 

The infamous clause was specific in its homophobia: the "acceptability of homosexuality as a pretended family relationship" could not be mentioned in schools. But it's been 17 years since the clause was repealed in Scotland - indeed, it was one of the very first acts of the new Scottish Parliament (the rest of the UK followed suit three years later). Why are we still hearing this archaic language? 

"We repealed, we clapped and cheered, and then we just forgot," Daly says. After the bitter campaign in Scotland, in which an alliance of churches led by millionaire businessman Brian Souter poured money into "Keeping the Clause", the government was pleased with its victory, which seemed to establish Holyrood as a progressive political space early on in the life of the parliament. But without updating the curriculum or retraining teaching staff, Daly argues, it left a "massive vacuum" of uncertainty. 

The Stonewall research suggests a similar confusion is likely across the UK. Daly doesn't believe the situation in Scotland is notably worse than in England, and disputes the oft-cited allegation that the issue is somehow worse in Scotland's denominational schools. Homophobia may be "wrapped up in the language of religious belief" in certain schools, he says, but it's "just as much of a problem elsewhere. The TIE campaign doesn't have different strategies for different schools." 

After initial disappointments - their thousands-strong petition to change the curriculum was thrown out by parliament in 2016 - the campaign has won the support of leaders such as Nicola Sturgeon and Kezia Dugdale, and recently, the backing of a majority of MSPs. The Scottish government has set up a working group, and promised a national strategy. 

But for Daly, who himself struggled at a young age with his sexuality and society's failure to accept it, the matter remains an urgent one.  At just 21, he can reel off countless painful stories of young LGBTI students - some of which end in tragedy. One of the saddest elements of the story from St Kentigern's is that the pupil claimed his school was the safest place he had to express his identity, because he was not out at home. Perhaps for a gay pupil in ten years time, that will be a guarantee. 

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