The surveillance industry operates in the shadows. For a big enough fee, former members of the special forces, intelligence agencies and police forces conduct sophisticated operations for multinationals, oligarchs and global law firms. Jealous spouses and insurance companies can hire investigators to snoop for a few hundred pounds. Some of the methods used seem intrusive, even unethical – but are they unlawful?
Is there a law that covers surveillance?
Surveillance operatives working for UK state agencies – the National Crime Agency, say, or MI5 – have specific laws governing what they can and cannot legally do. The Regulation of Investigatory Powers Act, introduced by Tony Blair’s government in 2000, is among the main ones. These statutes set out how surveillance should be authorised and carried out, and provide for independent oversight in some cases. There is, though, no equivalent for operatives in the private sector. In other words, hired spies can follow you, gather information on you, and pass what they find on to their clients – all perfectly legally.
So private surveillance companies are unregulated?
The private intelligence industry has no dedicated regulator and there is no single surveillance law. That does not mean there is no legislation operatives have to be mindful of. Like anyone else, they cannot break into houses, hack, trespass or blag private information. Elsewhere the legal position is grey. What distinguishes surveillance from stalking, for example? Repeated behaviour that causes distress could amount to harassment – but maybe not if an operative maintains there is a legitimate purpose to following a target. To stay within the UK’s data protection legislation, surveillance operatives must have a legitimate purpose for gathering personal information without consent. They must hold it safely and delete it once they are finished with it. Some surveillance could amount to misuse of private information, potentially in breach of the Human Rights Act. There could be a public interest justification – when the purpose is, say, to expose corruption. Such a defence looks harder to make if the client is an authoritarian state or a multinational corporation.
But would you even know if you have been under surveillance?
Of course, targets can only take steps to check whether the methods used against them are legitimate if they discover the surveillance. Occasionally, surveillance is “overt” – the target is supposed to know they are being watched, perhaps to intimidate them. Usually, these operations are covert, sometimes using skills acquired in some of the world’s best military and espionage training programmes. If all goes to plan, the target never finds out. And even if the client makes use of the information, the identities of the operatives are seldom revealed.
Has anyone taken the industry to court?
On the infrequent occasions that targets of surveillance not only rumble the operation but identify who carried it out, they have sometimes brought civil legal claims. This typically requires years of civil litigation at great personal expense. Even the richest claimants tend to settle.
Several of the companies that advertise their services offer to place trackers on targets’ vehicles. This would seem to be legal provided it is done in compliance with data protection and other laws. The animal welfare campaigner Wendy Valentine’s 2011 harassment claim against Bernard Matthews and the private investigator she said attached a tracker to her car ended when the turkey-farming corporation paid her £17,000 in a settlement.
Until more cases come to judgment, surveillance operators and their targets will not know who has the law on their side.
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