Seanad debates

Thursday, 7 July 2022

Circular Economy, Waste Management (Amendment) and Minerals Development (Amendment) Bill 2022: Report and Final Stages

 

9:30 am

Photo of Lynn RuaneLynn Ruane (Independent) | Oireachtas source

It is quite a big grouping, so I ask Members to bear with me. There is some potential repetition in terms of the two different Acts the amendments seek to amend.

Amendments Nos. 68 and 90 seek the outright deletion of sections 20 and 32 of the Bill. Sections 20 and 32 make provisions for operational CCTV for certain purposes. It is our assertion that these sections of the Bill are unnecessary and provide opportunity for problematic scope creep in the future.

Amendments Nos. 82 and 104 seek the outright deletion of sections 22, 23, 33 and 34 of the Bill. Sections 22 and 23 make provisions for the codes of practice around local authorities' CCTV schemes. Section 23 and 34 relate to the admissibility of data collected through the CCTV schemes as evidence in criminal trials. Again, it is our assertion that these sections of the Bill are unnecessary and provide opportunity for problematic scope creep in the future.

Amendments Nos. 69 and 92 adjust the purposes for which an authorised person may submit a proposal for the installation of the operation of a CCTV scheme in a functional area. Currently, the Bill provides that an authorised person may submit a proposal for a scheme for the purpose of deterrence, prevention, detection and prosecution of offences under the specified Act. This amendment seeks to delete the first three of these purposes and retain only the prosecution of an offence as a purpose for which a CCTV scheme can be proposed.

There is a significant difference, in my mind, in using surveillance in certain circumstances where one knows a crime has been committed in the hopes of identifying a person or persons who committed an offence, versus using surveillance to try to identify crimes being committed in a functional area. I believe it is wholly inappropriate that we should provide scoping legislation for local authorities to surveil people constantly in their functional areas. This, essentially, is what has been provided for by this part of the Bill.

The use of CCTV has serious implications for the right to privacy. In order to ensure that the interference with privacy is proportionate, the effectiveness of CCTV in fighting crime must be demonstrated. Given that this legislation is likely to result in the expansion of surveillance technology in our public spaces, it is important that we would hear more about the necessity and proportionality of schemes being provided for in this Bill. How effective is CCTV surveillance in preventing and detecting crime? Has research been undertaken in this respect in an Irish context or has any international research in this area been consulted in the drafting of this legislation? According to bodies such as the Irish Council for Civil Liberties, ICCL, there is limited evidence of the effectiveness of CCTV in preventing crime in Ireland and in other contexts, with research yielding mixed results. Very simply, there must be evidence demonstrating the effectiveness of CCTV schemes before we agree to expand them further. To date, this has not been provided. I would welcome any clarification that the Minister of State could provide in this regard.

Amendments Nos. 70, 71, 93 and 94 are related. Currently, the relevant subsection sets out that details of location, number and technical specification of the devices being used must be provided by the authorised officer when submitting a proposal for a scheme. The amendment breaks the relevant subsection down into two separate subsections. One subsection focuses on the details of the location and number of CCTV devices within the proposed scheme, and the other subsection focuses on the technical specifications of the devices within the proposed scheme. We propose two subsections because we feel that the provision regarding the technical specification of the devices requires elaboration. Amendments Nos. 70 and 93, therefore, set out the details that ought to be provided about the location and the number of devices to be used in a scheme. In addition to the wording as drafted, we have included the word "precisely" with regard to the location of the devices to ensure that specific details are provided as opposed to a general area or locality.

Amendments Nos. 71 and 94 separately set out the details that ought to be provided in a proposed CCTV scheme in relation to its technical specifications. Again, we have added to the Government's drafting with an amendment attempting to bring clarity as to what would be required in the technical specification. The amendment provides that detailed information regarding the hardware, software and AI used in the recording, processing and storage of data must be provided when proposing a scheme. Not all CCTV cameras work in the same way and not all software that is used to process or analyse recorded visual data does this in the same way.

Amendments Nos. 72 and 95 seek to add an additional requirement that must be met when an unauthorised person submits a proposal for a CCTV scheme. This is information regarding the deletion and destruction of data that is produced pursuant to the scheme. As drafted, an authorised officer must only set out details of the arrangements regarding the preservation of the data produced pursuant to the proposed scheme. While there is reference to codes of practice in a later section of the Bill to the deletion, disposal and destruction of data, we feel that it should be incumbent on the authorised officer to provide details of the proposals in this regard when setting out the details of the CCTV scheme. When a chief executive is deciding on whether or not to grant permission for a CCTV scheme it is critical that he or she has information available about the proposals for the deletion and destruction of the data. This is especially pertinent if earlier amendments restricting the purpose of the scheme are not accepted. If a CCTV scheme is constantly surveilling a local area a large swathe of personal data will be collected every single day. In our view, it is not acceptable that a proposal for a scheme would not include the details for the deletion or destruction of the data, when this is what will be required in the majority of cases.

Amendments Nos. 73 and 96 introduce new provisions which specify an assessment of the ethical, environmental and class considerations that must be carried out as part of any CCTV scheme proposal.The aim of the amendment is to ensure any scheme that is proposed is fair and ethical and not harmful to the local environment insofar as possible. Particular areas and communities are surveilled more frequently and intensely than others and the amendment aims to prevent this. In addition, it seeks that any proposed scheme includes an ethical and environmental consideration. I want to elaborate on the amendment, which is quite important to me. I listen to conversations on CCTV in certain locations and sometimes there is an increase in antisocial behaviour in a particular community or scaremongering about the sale of drugs in a particular area. My biggest concern is that we might end up with communities that are already overpoliced getting CCTV installed and picking up a huge amount of people's everyday lives on the suspicion that they are engaged in some sort of behaviour. That can lead to a class analysis of CCTV, where it is placed, why it is placed and what type of data is being created. That is my real fear and what I am trying to address in this amendment. People will say that is not the intention of the CCTV but I will give a separate example. During Covid when there was the 5 km travel rule, the Garda placed its checkpoints and gave out fines predominantly in working-class areas. At some level people make decisions based on class analysis and that happens with policing. The fear is we will have that creep in with CCTV.

Amendments Nos. 74 and 97 seek to ensure that the chief executive of a relevant local authority consults with relevant persons when deciding whether to grant permission for a CCTV scheme. As the Bill is drafted, a chief executive has unilateral power to grant or refuse permission for a scheme. Given the far-reaching impacts of a prospective CCTV scheme on individuals and communities within a functional area, it does not seem right that a chief executive should wield so much unilateral power. The amendments, as drafted, specify the persons the chief executive should consult with but it could include: other members of the local authority executive, local councillors, people living and working in the local authority area or persons with expertise in human rights, equality or data protection. If there are conversations about using any sort of technology or software, it is not wise to have a chief executive who probably does not have any understanding of how any sort of artificial intelligence is built or of facial recognition making a decision on whether to put CCTV in a particular place without understanding the technology. The chief executive should have to be informed by people who understand the software we are using and the human rights and data impacts of such a CCTV scheme.

Amendments Nos. 75 and 98 aim to establish a publicly accessible database within each local authority which sets out the precise location of recording devices in the local authority area. This is a hugely important amendment for ensuring the transparency and ethics of any proposed scheme. All recording devices should be prominently marked so that their presence and purpose are unmistakable in any event. The amendment also suggests that a database "which is accessible to the public" should exist. Sections 57, 89 and 90 of the Data Protection Act 2018 require that data subjects be informed of: the controllers; how to contact the controllers; the purpose of the process; the legal basis of processing; the recipients of data; whether data will be transferred to a third party, and if so, what safeguards apply; duration of storage; what data rights apply to the data where automated decision-making is applied; and, if so, what the logic is. It is not immediately clear how this occurs in practice as it relates to the recording devices specified in the Bill. I would welcome clarification from the Minister of State in this regard. According to the Data Protection Commission:

The use of recording mechanisms to obtain data without an individual's knowledge is generally unlawful. Covert surveillance is normally only permitted on an exceptional case-by-case basis ... [and] must be focused and of short duration.

The commission goes on to state: "If the surveillance is intended to prevent crime, overt cameras may be considered to be a more appropriate measure, and less invasive of individual privacy."

From my reading of the Bill it is unclear whether the proposed surveillance is to be overt or covert. If covert surveillance is provided for, there is a dearth of information on the additional safeguards required to ensure compliance with UN rights and data protection concerns. Providing a publicly available database of all recording devices within the local authority would be one such safeguard.

When considering this amendment and the drafting of same, the following point was a bit of an afterthought and the deadline had passed for submitting amendments but I was also thinking that people need to be made aware of where cameras are, what the specification is and that they need to be clearly signposted. Down the line we should also look at the following idea: in local communities when planning permission is being sought or if building is happening, if we put up a sign to say it is intended to build on this site, people should have an opportunity to make objections to building. When it comes to technology and surveillance we should also consider that planning-type objection model where the community can submit objections to technology being installed in their local areas and facing onto their parks and playgrounds where people are living their everyday lives. I did not get to include that in these amendments but that point is worth thinking about.

Amendments Nos. 76 and 99 seek to ensure that the chief executive of a relevant local authority consults with "relevant persons" when deciding whether or not to renew or revoke a permission for a CCTV scheme at the conclusion of a review. As the Bill is drafted, the chief executive has unilateral power to grant a renewal or revoke permission. These amendments, like amendment No. 81, provides an important check and balance in respect of a chief executive's powers. It seems especially important that a chief executive would consult with relevant persons when reviewing an expired or soon to be expired permission, given that the review will determine the effectiveness, necessity, proportionality or otherwise of a particular scheme in practice, as opposed to in theory. Like No. 81, the amendment as drafted has not specified the persons the chief executive should consult with but it could include: other members of the local authority; the executive; local councillors; people living and working in the local authority area; or persons with expertise in human rights, equality and data protection. It is particularly important that we do not just keep granting CCTV permissions in an area where it is not required and where there has been no assessment on whether it was effective in any shape or form.

Amendments Nos. 77 and 100 are on proposed changes to an approved scheme. As drafted, the Bill permits repairs or modifications of an already approved scheme that do not alter the extent of the coverage of the scheme or the capability of the devices used in the scheme without a proposal being made. These amendments seek to amend the provisions that only repairs can be made without a proposal being submitted by an authorised officer. If accepted, any modifications would need to be prefaced with the submission of a new proposal by an authorised officer. The provision, as drafted, is ambiguous and, therefore, could be seen as being left open to exploitation by persons acting in bad faith. The word "capability" is used in respect of "devices" in this section but this term does not appear in any other section of the Bill. As a result, it is unclear what the capability of a device means.

Amendments Nos. 78 and 101 are minor amendments to clarify the specific time period after which local authorities can terminate a CCTV scheme after an approval has been revoked. The section, as drafted, specifies that the termination shall occur not later than one month after the date on which approval expired or was revoked. To avoid unnecessary confusion in this respect, these amendments specifies that "one month" should be interpreted as meaning four weeks or "28 days".

Amendments Nos. 79 and 102 are virtually identical in that they both require that any approved CCTV scheme must be accompanied by the publication of transparency notices about the scheme. Amendment No. 79 is in respect of the amendment to the 1996 Act while amendment No. 102 is in respect of the amendment to the 1997 Act.The aim of these amendments is for the public to be fully informed about what surveillance is being carried out in their local areas. The amendments would require every CCTV scheme in a local authority area to be accompanied by surveillance transparency notices, which would be published both online and in physical form in public places in the local authority area. These notices would outline to the public in detail what cameras are being used and where they are being used, as well as any other technology that may be in use. These notices would include impartial information about individuals' privacy and data rights so that people can understand how their rights are being violated by such schemes.

If the Minister of State does not see fit to accept our amendments about prohibiting the use of facial recognition technology and other artificial intelligence, the very least we can do is bake this transparency requirement into the legislation. As I said, I am concerned to see definitions of facial recognition technology and other surveillance technology being inserted into the legislation with no clear identification of their purpose. Are these definitions being inserted so that the use of facial recognition technology, in conjunction with these approved CCTV schemes, can later be greenlit by the Minister without Oireachtas oversight? I sincerely hope that is not the case. If it is, the least we can do is to have minimum standards of transparency for these CCTV schemes. If they use facial recognition, members of the public have a right to know that their privacy is being violated in this way and that their biometric data are being collected. Transparency is a baseline, minimum requirement. A better scenario would be one where no faceprints are collected by the State.

Amendments Nos. 80 and 103 are virtually identical. They are duplicates of each other since they both seek to make the same regulations for CCTV schemes. They refer to the 1996 Act and the 1997 Act. They ban the combination of CCTV footage from an approved scheme with any artificial intelligence or facial recognition technology. Specifically, the amendments ban the direct installation of facial recognition technology in approved CCTV cameras, as well as the passing of footage from approved CCTV cameras to a third party for processing with facial recognition software. In other words, any use of the footage from approved CCTV cameras with this technology would be prohibited. This is an essential amendment. As I said, I am concerned to see definitions of facial recognition and other surveillance technology being inserted into the legislation with no clear indication of their purpose. Are these definitions being inserted to use that facial recognition technology in conjunction with approved CCTV schemes?

The use of facial recognition technology has been disastrous in other territories. I am alarmed at the casual way in which it has been thrown into legislation. The Garda facial recognition Bill is coming in the autumn and now this technology is being referred to in a Bill relating to the circular economy. It appears that the Government does not have any grasp of the wider ramifications of building surveillance into our public lives in this way. The UK is a terrible example of this, where a cavalier attitude to surveillance technology has resulted in it being used recklessly by police on busy high streets without the public's awareness. Big Brother Watch calculated that, of the supposed matches from facial recognition use by the Metropolitan Police between 2016 and 2022, 89% were inaccurate. More than 3,000 people were wrongly identified through facial recognition in that period. That means that more than 3,000 people were wrongly accused of crimes, yet definitions are being inserted into this legislation without either House ever truly scrutinising what it means to use facial recognition technology in this way.

Very few politicians understand how those data are trained and used and where they go. By inserting these definitions, we are creating a future issue due to the disastrous, gendered, racist and classist approach to how technology is used in particular countries. I hope the Minister of State will reflect on my concerns, because this is an essential amendment. A ban on facial recognition technology is needed so that no CCTV scheme can ever become a biometric data harvesting scheme in the future. We cannot leave that up to the whims of future Ministers.

On amendment No. 81, section 21 provides for the operation of mobile recording devices by authorised persons for certain purposes, but it does not outline in the same detail the protections as set out for fixed CCTV scheme. Additionally, what constitutes a mobile recording device is not adequately set out in the legislation. The absence of a definition of mobile recording device is especially problematic. It may be inferred as including camcorders, mobile phones, tablets, other handheld devices, drones or other emerging technologies that we are not even aware of yet. It may be interpreted as including different types of intrusive surveillance technology such as facial recognition technology and other future systems with intrusive capabilities. Existing surveillance technologies which pose significant human rights concerns may be unknowingly provided for in the legislation because they are not specified.

On the matter of safeguards, there is no mention of unique data impact assessments being necessary prior to granting authorisation. There is also no reference to visibility or signage for mobile recording devices as required by the data protection law. It is imperative that these safeguards are included. It is our view that this section of the Bill should be removed entirely or amended significantly prior to the legislation progressing.

Amendments Nos. 83 and 85 relate to the development of codes of practice for CCTV schemes. Specifically, they would prevent CCTV schemes provided for by the legislation from operating prior to the preparation and submission to the Minister of those codes of practice. I welcome the provision of codes of practice in the legislation. There are some welcome safeguards set out in them. However, it is my view that approving and installing CCTV schemes prior to the development and publication of the codes of practice for how they should operate puts the cart before the horse. We need codes of practice to ensure that the schemes provided for are operated safely, fairly, equally and in a way that complies with human rights.

Amendments Nos. 84, 85, 106 and 107 are related and should be considered together. They are minor amendments to the wording of the subsection that sets out the need for local authorities to describe safeguards, security measures and mechanisms being used in their functional area to mitigate risk.

Amendment No. 89 is a minor amendment which seeks to replace the word "any" with "the" with regard to safeguards in security measures or mechanisms to be implemented by the local authority to mitigate risk. The use of the word "any" in this context gives scope for a local authority to implement none of the safeguards as set out in the section. These amendments simply strengthen the Bill's provision for the mitigation of risk and leave less scope for safeguards to be sidestepped by a local authority.

Amendments Nos. 86 and 108 specify that the Local Government Management Agency, LGMA, should consult with the Irish Human Rights and Equality Commission prior to submitting draft codes of practice to the Minister. The Bill currently provides that the LGMA must consult with relevant Ministers and the Data Protection Commission, DPC. While consultation with the DPC is a welcome provision, given the wide range of human rights, equality and civil liberties implications, potentially including the freedom of speech and assembly, it is critical that IHREC is consulted in the development of the draft codes of practice. IHREC is a subject matter expert in this area and it is important to call on its knowledge and experience in the development of codes of practice, which will go a good way in developing safeguards.

Amendments Nos. 87 and 109 seek to ensure that the evidence obtained through CCTV schemes or personal recording devices under the scheme can only be introduced as evidence in criminal proceedings where it has been obtained on foot of a valid search warrant. The admissibility or otherwise of evidence should be a matter for the courts and not the Legislature. The provision is an overreach which unduly extends into the remit of the courts, which are the proper and correct forum to determine whether evidence is admissible following a submission from both the prosecution and the defence.

Amendments Nos. 88 and 110 delete the presumption in criminal proceedings under the Bill that a recording device is capable of producing accurate information or material, that the information produced by the device in respect of the proceedings was accurate, and that the device was operated in accordance with the codes of practice as set out in the Bill. It is my view that it should be incumbent on the prosecution in a criminal case to demonstrate that the evidence it has presented to the court is accurate and was obtained in accordance with the relevant codes of practice. This amendment seeks to achieve this through the deletion of the relevant subsection. Amendments Nos. 89 and 111 propose to delete the specific offence of damaging a CCTV device. The offence of criminal damage already exists in other legislation and it is unclear why it needs to be replicated here. Opposition Senators are frequently told their amendments are unnecessary or pointless because they would give rise to duplication, yet here the Government is providing for duplication of offences in legislation for no apparent reason. It seems out of keeping with best practice in legislative drafting.

I have set out a lot of information for the Minister of State. I thank our office staff for their assistance with these amendments, which we have been working on for some time. It is a shame the debate on Committee Stage was guillotined because it means I am only speaking on these proposals for the first time on Report Stage. We did not have time on Committee Stage to move our amendments or tease them out. As the Minister of State can see, they are extremely substantive. I am the only one seeking to have a conversation on this part of the Bill, which we will not get to do in the way we could have done on Committee Stage. That is unfortunate because the issues involved are very important, not only for this Bill but because the questions around the use of CCTV and the polices and procedures around data will be crucial to every legislative proposal we go on to create over the coming years as technology begins to expand and overreach into people's lives and we seek to deal with the human rights abuses that may stem from that. This is a very important aspect of the Bill. We should not be giving powers to chief executives of local authorities to use CCTV at a whim without having the full body of knowledge and understanding of the implications of that for people and communities. I hope the Minister of State will respond in the best possible way to my concerns.

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