Many customers of Detective Store ask whether they can legally purchase and use our products. We decided to write an article regarding surveillance law. If you are not certain about your purchase in our online shop, please read more. Remember that law is changing and in future some products might be prohibited.
An issue often raised in relation to surveillance activities is whether the use of spy equipment is actually legal. To determine the legal status of use of such equipment, one needs to remember two crucial concepts – reasonable expectation of privacy and consent.
Reasonable expectation of privacy determines where and during what an individual has the right to have their privacy uncompromised. It is this concept that permits installation of surveillance devices e.g. in one‘s own office, but forbids to do the same in locker rooms, private homes, etc. However, certain exceptions exist – for instance, in case of being suspected of a crime, the importance of a legitimate investigation takes precedence over the suspect‘s expectation of privacy, allowing the authorities e.g. to install listening devices in their house.
Consent in general means that an individual is aware of and agrees for being monitored and/or recorded. Consent can be either expressed or implied (e.g. continuing a phone call after hearing an information about the conversation being recorded).
Legal regulations for surveillance devices
In the UK, the use of surveillance equipment is regulated by six separate legal acts:
- Data Protection Act – regulates the extent to which data handlers are allowed to use personal data of members of the public, as well as imposes obligation on them to take measures to protect said data. Violation of the DPA provisions may have severe legal consequences, including imprisonment.
- Lawful Business Practice Regulations Act – governs the monitoring of employees in their workplaces, which usually involves keeping track of their telephone and computer activity; established to protect the employees from being kept under surveillance at work without legitimate reasons.
- Regulations of Investigatory Powers Act – regulates the activity of public organisations such as the police, spy agencies, or HMRC, as far as monitoring, collecting data on, and recording citizens goes.
- Human Rights Act – provides for the right to privacy, as there is no separate piece of legislation to cover this issue.
- 1998 Wireless Telegraphy Act – deals with covert and discreet recorders, can be interpreted as being more in favour of the parties conducting the surveillance than the parties spied on.
- CCTV Code of Practice – specifies the rules to which the operators of closed circuit surveillance systems need to adhere.
Legal view on computer monitoring in the UK
Protection of children against exposure to inappropriate materials, fraud prevention, business compliance ‘ these are but a few reasons for which people might want to monitor computer usage. As long as the computer you intend to monitor belongs to you, you are allowed to supervise it with use of any instruments you want. However, according to the provisions of the Data Protection Act, if you wish to utilise information collected by the monitoring systems, you are obligated to inform anyone using your computer that their activities are being monitored.
If you are an employer, and you intend to keep track of your employees‘ computer usage, the Data Protection Act requires you to obtain their consent, as well as regulates the extent to which the collected data can be used.
Monitoring employees‘ computer usage requires several matters to be kept in mind:
- As an employer, your are obligated to act in accordance to the provisions of the Lawful Business Practice Regulations Act.
- Obtaining the employee‘s consent (for instance, by placing appropriate clause in their employment contract) is necessary for the monitoring to be legal.
- Any pieces of personal information gathered during monitoring employee‘s computer usage must not be made public, and must be subject to reasonable protection.
- Any information collected during monitoring of employee‘s computer activity may be used for legitimate reasons only (e.g. protection of sensitive information, prevention of suspected criminal activity, fraud, or unethical behaviour, etc.).
Lawful monitoring of private computers requires following its own set of rules:
- You are only permitted to monitor usage of computers you own – monitoring any other computers is against the law.
- Gaining unauthorized access to someone else‘s computer is illegal.
- You have the right to keep track of computer activity of anyone using your computer.
- If you do not inform a person using your computer that their use of said computer may be monitored, you are not legally allowed to share or otherwise make public any information gathered during monitoring their computer usage. Even if you do make them aware of the monitoring, it is still illegal to share any of their personal or private information (e.g. passwords or banking information captured by keyloggers, or devices such as SpyLogger Classic Plus), as it would violate their reasonable expectation of privacy.
- No permission or consent is required to monitor the computer usage of any underage person using your computers.
GPS trackers in the UK
More often than not, keeping employees under supervision has a positive effect on their work efficiency. GPS trackers (like the GPS GL200) installed in company cars can be used to this end exactly – keeping the employees using these cars aware of being monitored makes them drive safer and less likely to waste company resources.
If you wish to fit a company car with a GPS tracker, there are a few issues you should remember:
- To track an employee using a company vehicle, it is necessary to get their consent beforehand (for instance, by placing a relevant clause in their contract of employment).
- As the owner of a GPS tracker, you are obligated to protect any data gathered by the device. Should these information leak out, you – or your company – might be found guilty of breaching the Data Protection Act.
- The above is especially relevant for those of the employees who are entitled to use company vehicles outside their job. Such employees must be provided with means to deactivate the tracker while using the car for private purposes. Issuing an employee with a vehicle which in turn is used to keep track of them during off-hours might be considered an infringement of their privacy, with rather grave legal implications concerning data protection.
- Information gathered by a GPS tracker that can be used to identify the employee (such as an address at which the car stays parked overnight on a regular basis, which quite possibly might be the employee‘s place of residence) is considered a piece of personal data, and as such must be safeguarded with utmost care.
Tracking of private vehicles
Tracking domestic vehicles is governed by rules similar to those regulating tracking commercial cars – it is usually legal, unless it infringes the provisions of the Data Protection Act.
Most commonly, the vehicles tracked are private, family cars, or those used by younger members of the family, who often rely on their parents to pay for the insurance (which makes the latter understandably interested in usage of said cars). In such cases, all users of said vehicles are informed about the presence and operation of the tracker.
In any case, the operator of a GPS tracker must strictly adhere to legal regulations, as such devices can be used to track virtually any vehicle, in some instances even without the need to access the car‘s interior (e.g. using trackers with magnetic fastening devices).
Two most important points anyone using GPS trackers should remember are:
- In order to track anyone legally, it is necessary to obtain their consent beforehand.
- Any elements of personal data gathered by the tracker must not be made public in any way.
Video surveillance under UK law
In general, using spy cameras is not forbidden by UK legislation, though it is limited by certain restrictions defined by the Human Rights Act and the Data Protection Act. If you wish to use a spy camera and do it in accordance with the law, you might want to keep the following points in mind:
- It is only legal to install surveillance cameras (for instance, MDS-412 HD) in one‘s own residence or business. Setting up a spy camera in other places (i.e. homes other than your own, or offices you do not run) is considered a violation of the law.
- There are certain areas, where the subjects may have a reasonable expectation of privacy (such as changing rooms, bathrooms, etc.). The law does not permit to install spy cameras in such places.
- It is legal to set up a CCTV system to monitor the outside of one‘s property. However, it must not violate the privacy of anyone else. For instance, aiming a CCTV camera directly at a window of a neighbouring may be considered a breach of the Human Rights Act.
- CCTV systems are not allowed to record audio-video material ‘ only the recording of image is considered legal.
- In case of CCTV systems used in public, it is required to set up signs to make the members of the public aware of the system‘s presence and operation. Furthermore, operators of such systems are obliged to register them at the Information Commissioner‘s Office.
- Footage recorded by CCTV systems operating in public must be reasonably protected and kept secure. Uploading the recorded material to publicly accessible Internet sites, or leaving storage media with said footage on them unattended, might be considered a breach of the Data Protection Act.
- With the exception of legitimate crime investigations, the owners of CCTV systems are not allowed to share footage captured by them, unless granted an explicitly stated permission from the persons recorded.
Legal view on phone monitoring in the UK
When it comes to phone monitoring, the legal regulations are not as clear and understandable, as is the case with surveillance cameras. The most ambiguous issue by far, with interpretations varying in dependence on parties involved, is what actually does the term ‘legitimate‘ denote.
Certain services and agencies (that number including the police, HMRC, intelligence services or spy agencies), allowed to tap the phones without notifying their users, are considered legitimate users of phone monitoring instruments, though their operation is limited by the Regulation of Investigatory Powers Act. Practically, it allows a relevant service, upon receiving a warrant from the Home Secretary, to legitimately monitor your phone activity, should they suspect you of committing a crime.
Monitoring of phone calls is not a sole domain of government services – business owners, and even private citizens, are allowed to do it as well, though in this case more strict regulations apply.
- It is allowed to record your own phone conversations (e.g. using a phone with SpyPhone software) even if you do not notify your interlocutor about the recording, as long as the record is not shared with anyone else (not even the authorities, e.g. for investigative purposes – which makes such recordings effectively inadmissible as evidence in court proceedings).
- As an employer, you have the right to record conversations between your employees and customers, though it is necessary to to have their implied consent (i.e. both parties must be made aware of their conversation being recorded. Such recordings (or transcripts) can be subsequently used e.g. for training purposes, or as evidence in legitimate legal proceedings. Apart from customer-employee conversations, phone calls between employees made from their business phones also can be legally recorded (again – their consent is required for that).
- Under no circumstances is it allowed to record anyone‘s private telephone conversations – such an activity is a breach of the recorded person‘s reasonable expectation of privacy. This rule, however, does not apply e.g. in case of overhearing a person having a loud conversation over the phone.
- Tapping one‘s phone in order to allow a third party to access a conversation they do not take part in is against the law. It is only legal if the information gathered during the listening in is necessary for a legitimate investigation, either civil or criminal.
- Even in cases of legally justified listening in on a phone call, the party conducting the listening in is not allowed to discern the contents of the conversation to anyone else.
- Should you record your own phone call, and give your interlocutor reasons to believe the conversation will remain private, making the recording of said call available to third parties is against the law.
- Once special circumstance under which recording an individual without their knowledge and consent is permitted, is acting in public interest. In such a case, the infringement of the recorded person‘s privacy committed by the recording is outweighed by the gravity of the crime which the recording is intended to prove.
Legal view on counter-surveillance in the UK
In general, use of counter-surveillance instruments is permitted by the UK law. Therefore, if you believe your movements, phone calls, use of a computer, or other activities might be monitored, you have the right to use appropriate protective measures.
However, there are certain restrictions as to how (and which) counter-surveillance measures can be used.
- In most cases, counter-surveillance measures (such as listening device detectors, e.g. SH-065) are legally allowed to use. The same applies for surveillance prevention in form of encrypted communication methods or data storage devices.
- Counter-surveillance actions must not violate the rights of other people (e.g. it is illegal to gain unauthorized access to a computer belonging to another person in order to determine whether they have you under surveillance).
- Similarly, use of devices jamming wireless networks (WiFi, GSM network, etc.) is illegal, as it affects third parties, rendering them unable to communicate over said networks. Legally, the only parties allowed to use jammers are the police and other public order services.
- Though it might raise some ethical concerns, using couner-surveillance instruments against the authorities is also deemed illegal.
Using surveillance equipment of any kind requires a healthy dose of common sense – if you have no legitimate justification for spying on another person, simply don‘t. If you have, and you do, make sure not to share their personal information, or breach their privacy.
Common sense aside, if you wish to use spy equipment, try and learn what exactly current legal regulations allow, in order to avoid possible problems caused by seemingly legitimate