Cyber kiosks are laptop-sized machines which allow police to bypass encryption to quickly read personal data from digital devices such as mobile phones or laptops.
After concerns were raised about their use in Scotland, in April members of the Scottish Parliament’s Justice Sub-Committee on Policing asked Police Scotland to pause their deployment of cyber-kiosks until there was greater clarity on the legal framework for their use.
Police Scotland then obtained a legal opinion to clarify the legal basis for their operation and the Scottish Government responded to the Committee, Cabinet Secretary Humza Yousaf saying in a letter to John Finnie MSP:
‘….while is absolutely vital that Police Scotland can keep pace with a changing
technological landscape, they must also respect the rights of the individual.
It is, of course, for the SPA and Police Scotland to ensure that they exercise their powers in accordance with the law, and that there is a legal basis for any particular use of the technology as it stands. It is of course open to anyone who believes that a particular course of conduct is not lawful to challenge it in the courts. I am not aware of any such challenge; and the Sub-Committee will have noted the opinion given by Murdo Macleod QC and published correspondence from the Crown Office and Procurator Fiscal Service.’
However, the Scottish Human Rights Commission has criticised this response and has said that they want to see clear rules and safeguards in place before any further use of cyber kiosks.
The Commission said:
‘The Commission remains of the view that there is a lack of clear legal basis for the use of cyber kiosks by Police Scotland. We note the legal opinion provided to Police Scotland. However, we also note that the opinion makes clear that there is very limited case law available in this area. The case law that does exist stresses the need for clear procedural safeguards to be in place to avoid the arbitrary use of power, or overuse of discretion by the police. We are concerned that the specific case authority cited in the opinion enables wide discretion by the police when conducting a search of a mobile phone, without establishing clear parameters and safeguards. In our view, relying on this as a legal basis for proceeding to use cyber kiosks does not address the need for clear, sufficient and robust safeguards, including appropriate oversight. People’s rights to privacy will therefore remain vulnerable to being violated until the legal framework is strengthened.’
The Commission goes on to say:
‘We hope that the Scottish Government will provide a commitment to leading the enactment of appropriate legislation in this area in the near future. Our view remains that a statutory code of practice is the best way forward.’
The Cabinet Secretary will give evidence to the Justice Sub-Committee on this issue on 13th June.
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