In an investigation into corporate
surveillance techniques, the weekly technology law podcast OUT-LAW Radio discovered that no offence is
committed by placing a bug in a workplace to secretly record
conversations.
"There's nothing in any piece of legislation that stops you from
putting a physical bug in a room, an office or something like that
provided you are there lawfully and you haven't committed any
criminal offence to get access to it," said Victoria Southern, a
lawyer at Pinsent Masons, the law firm behind OUT-LAW.
"There is no UK law that says thou shalt not bug by means of
transmission device," said Justin King of counter-surveillance
consultancy C2i. "You wouldn't go down on criminal law, you're not
actually committing a criminal offence."
In the wake of the bugging scandal which has engulfed Hewlett
Packard, OUT-LAW investigated whether it was possible to conduct
legal surveillance in the UK, and what common practices were. It
soon emerged that placing a bug is legal.
Companies attempting this will almost certainly fall foul of
data protection legislation once they begin using the data they
have collected, said Southern.
"If the bug is recording the goings on in a particular room that
could take you into the realms of data protection. It requires that
data is processed fairly and lawfully and when you are looking at
whether data is processed fairly you look at what data subjects
have been told," she said.
"If the bug's just been planted there and no-one's been told
it's recording the particular goings on in a room then there's a
good argument that the processing could be considered to be
unfair," said Southern.
That, though, will only lead to a warning from the Data
Protection Commissioner's office, which is unlikely to be a
significant deterrent for private investigators. It could become
more serious than that, though.
"The Information Commissioner (ICO) could issue an enforcement
order which could say to the private organisation that they must
cease processing," said Southern. "If they continue to [break it]
then that could become criminal liability under the Data Protection
Act."
King has another suggestion. "If you connect your microphone to
the ring mains and use 240 volts to power it you could probably be
done for theft of electricity," he said.
The rules are clearer on telephone conversations, said Southern.
"If you are recording a telephone conversation then there is a
specific criminal offence provided for in those circumstances," she
said.
Hewlett Packard is still embroiled in its bugging scandal.
Californian Attorney General Bill Lockyer has filed four felony
counts against each of five people, one of whom is ex-chairwoman
Patricia Dunn.
"One of our state's most venerable corporate institutions lost
its way as its board sought to find out who leaked confidential
company information to the press," said Lockyer.
