Technical surveillance in the private sector – a question of regulation

For many years technical surveillance devices such as covert cameras, microphones and tracking devices have been used by law enforcement and security services within the United Kingdom to lawfully gather evidence and intelligence on individuals and organisations – intelligence that could not be obtained by any other means. There is no more damning evidence than the spoken word coming directly from the ‘horse’s mouth’ as it requires little interpretation.  A good example of evidence obtained via covert technical surveillance measures can be seen in the Metropolitan Police footage obtained from surveillance devices deployed in a flat frequented by suspects during the Stephen Lawrence murder investigation.

At one time this activity was restricted to the ‘chosen few’ as the cost and expertise required of, not only obtaining high quality technical devices, but also to covertly deploy them and subsequently deal with the product they provide, put their use beyond the range of many who would benefit from unlawfully obtaining information in respect of an organisation or individual. Sadly the situation has now changed. Covert surveillance devices are now not restricted to use by law enforcement or the security and intelligence services. Such technical surveillance equipment is also being used unlawfully by organisations or individuals to commit acts such as industrial espionage – as well as a range of other criminality.

Within the last ten years advances in technology have made low cost, easy to deploy devices available to everyone – particularly the technology that uses the mobile telephone GSM system.  Imagine a covert microphone using the GSM system to transmit data concealed in an electrical multi-way adaptor deployed by an eavesdropper in the conference room of a major pharmaceutical company. As long as the device has power it will function and can be activated by the eavesdropper from any telephone anywhere in the world and as such the room can be “dipped” for activity. If all is quiet the eavesdropper can just hang up but if there is sensitive or confidential information being discussed then the eavesdropper can monitor and record any conversation taking place within that room. And so, for a few hundred pounds, the eavesdropper has a window into the company and as a result can gain valuable intelligence and information.  Very simple and if discovered, anonymous and yet it can be the most cost effective way to obtain direct intelligence about an organisation’s past, present and future intentions.

In the United Kingdom there is no shortage of outlets selling these types of technical surveillance devices. A 2010 survey identified fifty registered spy technology shops and a major high street retailer selling various types of technical surveillance devices over the counter.  These figures do not include an unknown number of specialists that build devices to order or provide access to devices via the internet. Think about the business economics of that!  There is a sufficient customer base for devices to be stored and sold off the shelf.  Maybe the questions we should be asking are “Who is buying them?” and, “what are they doing with them?”

The “who” and the “what” is fairly straight forward as these low cost devices are now available to everyone. They provide terrorists, organised crime groups, radical elements of single issue pressure groups, competitors, private investigators, stalkers, and even the man in the street with a covert intelligence gathering capability – opening up the whole argument over the legality of this activity.

In the United Kingdom, law enforcement and other public sector organisations that wish to conduct any form of conventional or technical surveillance must have this authorised under the Regulation of Investigatory Powers Act 2000. In effect it authorises them to breach the human rights of the subjects under surveillance most notably:

Schedule 1. Part 1. Article 8. The right to a private and family life.

Schedule 1. Part 2. Article 1. The right to enjoy their possessions without interference.

For law enforcement and national security issues, the activity is overseen and in some cases, depending on the level of intrusion, actually authorised by the Office of the Surveillance Commissioner.  However there is no legislation in force relating to the authorisation and overseeing of the surveillance activities of private sector organisations or individuals who wish to conduct technical surveillance for their own ends.

It is not illegal to place covert devices on property that you own. In fact in many instances it could be beneficial however there must be an element of proportionality.  A close protection team asking permission from their principle to have a small tracking device placed into his or her suit lining may help facilitate the task of protecting that principal. Moreover, a covert camera deployed in an office may identify a corrupt or coerced staff member engaged in petty theft or acts of industrial espionage.  On the other hand, in 2008 the owner of a guest house in Redcar was convicted and imprisoned for having a covert camera installed in a guest bedroom. He stated it was in order to detect drug misuse however the camera was fixed to look directly onto the bed  and was only capable of live monitoring with no recording facility available. Examining this case closely puts a whole different perspective on things.

In short to place technical surveillance devices or to have them placed on property you do not own, for example in an ex partners home, is a breach of their human rights and may involve breaking the law, i.e. the commission of civil trespass or even criminal offences such as criminal damage or abstraction of electricity in order to facilitate their deployment and use. Take the current High Court case of Valentine versus Matthews. Mrs Valentine found a tracking device beneath her car.  She removed the battery and SIM card and maintained observations on her vehicle allegedly identifying two private detectives interfering with the underside of her vehicle on her drive at midnight. They were allegedly from a firm of private investigators allegedly used by Bernard Matthews Ltd. I say allegedly as the case has not been concluded however given the burden of proof required in a civil court I am sure private investigators across the country are awaiting the outcome with great interest and baited breath.

In a 2009 survey, seventy per cent of London based private investigators admitted to using technical surveillance devices to obtain information about their subjects. Given the post NOTW climate, with the private investigations industry firmly under the spotlight, it is incredible to still see many requests posted on private investigator’s forums asking for assistance with the deployment or retrieval of electronic vehicle tracking devices.

My company has seen a rise in requests for electronic bug sweeping (Technical Surveillance Counter Measures) in residential or small jointly owned business premises in the month of January – as a result of post-Christmas separations and divorces. The impact of these cheap surveillance devices is readily apparent within the domestic market; however, when you examine cases such as that of model Katie Price who found a tracking device underneath her car, there can be little doubt that the celebrity, corporate, and even government markets are equally affected.

As with all types of covert activity, whether it is conducted legally or illegally, it is often the case that the subjects have no knowledge that this activity may be or has been conducted against them and therefore they have no plan to prevent, detect or counter it.  Many of those affected, unaware that they are subject of surveillance, put the consequences of the loss and dissemination of their information down to their own mishandling or more often than not bad luck. Maybe they need to think again!

John Mercer is an expert in security and investigations with an extensive background in covert surveillance and investigating organised crime. He is currently the Managing Director of Merloc TSCM, a Technical Surveillance Counter Measures Company situated in the UK.