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Information Commissioner agrees police use of mobile phone data is ‘unlawful’

The Information Commissioner’s Office (ICO) has today (18th June 2020) published its long-awaited investigation report into mobile phone data extraction by police forces in England and Wales.

The Information Commissioner, Elizabeth Denham CBE launched this investigation in response to serious concerns repeatedly raised by Rape Crisis England & Wales, the End Violence Against Women Coalition (EVAW) and a number of groups about the disproportionality of police data extraction practices and their negative impacts on criminal justice, and especially on victims and survivors of sexual offences.

The particular concern the Commissioner highlights in her report is her ‘finding that police data extraction practices vary across the country, with excessive amounts of personal data often being extracted, stored, and made available to others, without an appropriate basis in existing data protection law.’

The ICO report makes a number of recommendations, including ‘calling on government to introduce modern rules, through a code of practice that improves data extraction practices.’

Rape Crisis England & Wales national spokesperson Katie Russell said:

“Rape Crisis is pleased to see the Information Commissioner strongly and clearly agree with our repeated assertion that excessive amounts of largely irrelevant data are often being extracted, stored and made available to others unlawfully by police.

We’re gravely disappointed, however, that this report, for which we’ve waited a significant amount of time, is not more robust in general, and fails to acknowledge that unlawful data extraction overwhelmingly affects victims and survivors of rape and other sexual offences, and women and girls in particular.

Through our frontline work providing specialist support services to sexual violence and abuse survivors, we’ve heard time and again how those who’ve already been subjected to such traumatic crimes have been made to feel like the ones under investigation by these practices, and even re-traumatised. While suspects are rightly viewed as innocent until proven guilty, it seems sexual offence complainants are treated as ‘suspicious until proven otherwise’ by our criminal justice system.

It remains our view that very little data contained on any mobile device could ever be relevant to the question of whether consent was given to a specific sexual act at a specific time. In light of this, the practice of wholesale data downloads strongly implies that ‘fishing expeditions’ to undermine complainants’ integrity have become routine.

When we consider that the majority of victims and survivors of these serious crimes still don’t report to the police, and the unacceptably and chronically low rates of criminal justice for those who do, it is clear something urgently needs to change.

It is not enough to rely on the very agencies the ICO have found to be acting unlawfully to develop and adhere to their own voluntary codes of practice on this.

Victims and survivors of serious sexual offences, which have wide-ranging, long-term impacts on health and lives, are being failed by our criminal justice system and the Government has an urgent responsibility to act.”

Find more information here, or download the full report here.