Census 2011: To whom will our data belong?

Posted: March 17, 2011 in Census 2011

The 2011 UK census has proven to be a point of great controversy with questions being labeled as intrusive and even missing. As if this wasn’t enough though, it seems that the hottest point of contention lie in the firm that won the contract to conduct this years census. Lockheed Martin UK, a UK subsidiary of the US defense firm, shall this year be in charge of processing the data. Questionable enough in itself, but the real concern for people is what this means in terms of data protection with many asking if the US Patriot Act mean that US security services could access data from the UK census because the forms are being processed by American firm Lockheed Martin? Under the legislation commonly referred to as the Patriot Act, American companies are required to allow American intelligence services to access information they hold. Therefore, it has been argued, that the information handled by Lockheed Martin in the UK could be accessed under the terms of the Act.

Concerns over Lockheed Martin UK’s potential role as a bridge between census data and the US Patriot Act are not new. In 2009 Conservative MP Nick Hurd tabled a parliamentary question asking what safeguards were in place to prevent the US Government accessing the information. The response which came from National Statistician Jill Matheson stated: “The Office of National Statistics has put in place rigorous organisational and contractual arrangements for data capture and processing to ensure that personal Census data will remain secure and confidential. The measures in place include:

  • “All Census data is owned by ONS and both Census employees and contractors working on the Census sign a declaration of confidentiality to guarantee their understanding and compliance with the law;
  • “Contractual arrangements with Lockheed Martin UK Ltd ensure that only sub-contractors registered and based in the UK and either UK or EU owned will have access to any personal Census data;
  • “No Lockheed Martin staff (from either the US parent or UK company) will have access to any personal Census data; and
  • “All data will be processed in the UK and remain in the UK.”

Ms Matheson also stated that an Independent Review would also be carried out to assess the security and confidentiality arrangements for the census. This review has now been completed and stated that the Patriot Act issue had been “well addressed” by the safeguards already in place. But while the review seems to play down the significance of the Patriot Act in the debate over the census, broader concerns have been raised about the possibility of the information in the Census being available to foreign governments.

Douwe Korff, Professor of International Law at London Metropolitan University, argues that the law covering statistics does not put in place sufficient safeguards to prevent the data being accessed by US Security Services. He raises concerns over the section of the Statistics and Registers Act 2007. While section 39(1) sets out rules protecting confidential information, the Act also lists instances where these provisions would not apply to information disclosed “in the interests of national security, to an Intelligence Service.” Professor Korff argues that “under various (still largely secret) treaties and arrangements, any information available to any UK intelligence service is made available with little restriction to the U.S. agencies in particular. If the U.S. Homeland Security agency or the CIA were to ask our spooks for Census data on certain individuals (or even to carry out a “trawl” through such data), and our spooks then seek such access “in the interests of national security”, there seems to be little in the law to prevent such access (if one would even hear of it).”
If this is the case, the US Intelligence Services could potentially have access to census data, but not because of any involvement of Lockheed Martin and the operation of the Patriot Act. Much of this is conjecture but it does have some basis in officially documented fact, for instance, the UK/US Agreement, which enabled sharing of intelligence between the two countries during the Cold War. We contacted the Office for National Statistics census team about this possible loophole in the law, and were provided with the following statement:

“The Statistics and Registration Act does allow, but not require, the National Statistician to provide personal information under the circumstances listed in section 39 of the Act. Census legislation prior to 2007 allowed the Registrar General to provide personal information if permitted under the law. The 2007 Act does not weaken the protection of personal census information in any way.

“The Office for National Statistics will never volunteer personal census information for any non-statistical purpose. Those seeking disclosure will be directed to non-statistical administrative sources as viable alternatives to statistical information.”

“If a request for disclosure is pursued by any person or by any organisation, whether within or outside the UK, the National Statistician will always refuse it and will contest the case to the maximum extent possible under the law, using each stage of appeal in the courts if necessary to ensure statistical confidentiality.”

This statement does not refute the theoretical possibility of census data being asked for by intelligence services. But the statement insists that the Act ‘does not require’ disclosure, and that were it requested by any organisation, it would be refused, and it would then be up to the courts to decide if the 2007 Act compelled the disclosure.

It seems reasonable to rely on the conclusion of the independent review team that safeguards are in place to ensure that the involvement of Lockheed Martin UK in the processing of Census forms will not see personal information becoming available to the US government under the Patriot Act. But this debate is perhaps a distraction from a wider issue of access to census information. The questions raised by critics such as Professor Korff relate more to the latitude allowed by the Statistical and Registration Services Act when it comes to disclosure of census information, which could themselves enable information to be accessed indirectly by foreign governments. While it seems such a request would end up in the courts, it is somewhat beyond Full Fact’s remit to muse on whose side the judges would ultimately rule.

 

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