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Dear Mr Schrank,

I am writing with regard to the current controversy over the private arrangement between SWIFT and the U.S. Government that facilitates the extradition of confidential financial transaction data from SWIFT to U.S. authorities. You will be aware that Privacy International contends that this arrangement breaches privacy and data protection law, and we have lodged complaints with regulatory authorities in 38 countries.

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The Supreme Court of Canada has upheld the legality of the DNA database, including the retroactive collection of profiles. This decision supports the DNA Identification Act of 1998 and sees the taking of DNA from those who are convicted of serious offences not so much as a search but more as an act that enables identification.

In the case R v Rodgers (2006), decided 4-3, the Court was asked to consider, amongst numerous other issues:

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The Criminal Justice Act 2003 further widens the circumstances in which a non-intimate sample may be taken from an individual. The Act merely requires that in order to take a non-intimate sample without consent, a person is arrested for a recordable offence - a significant advancement on the requirement that the individual was charged with a recordable offence and one that will encompass countless more individuals.

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The UK currently maintains the largest DNA Database in the world and is encouraging other governments to implement similar systems in their respective countries. Using international organisations such as Interpol, participant governments will be able to share and exchange the DNA profiles of their citizens subject to vague legislative provisions, such as 'the interests of crime detection and prevention'.

Background

The successful prosecution of a serial sex offender in 2004 led to strengthened calls for a more active use of the global DNA database operated by Interpol. Caroline Dickinson was 13 years old when she was raped and murdered in a hostel in Brittany whilst on a school trip in 1996, but it was not until 2004 that her killer was convicted. Early police investigations had not raised any significant leads but at the persistence of Caroline’s parents, the French police authorities changed their traditional operational practices and conducted the first mass DNA testing in France, taking over 3,500 samples. This did not however prove to be fruitful in assisting the capture of the perpetrator.

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A campaign to eliminate the DNA profiles of 24,000 innocent juveniles from the database has been instigated by a Conservative Member of Parliament after a lengthy battle to remove the record of a concerned constituent’s son who was arrested as a result of misidentification. The National DNA Database currently holds the records of 750,000 juveniles – some of whom have been convicted of offences but many of whom were only charged, cautioned, questioned or were mere witnesses to incidents.

The DNA profiles from more than 750,000 juveniles have been added to the UK's National DNA Database since its inception in 1995. Approximately a third of these samples were obtained in the last two years as the table below illustrates[1]:

 Year

Estimated Number of 10 to 17 year olds added to the Database

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The most significant amendment of the Criminal Justice and Police Act 2001 (hereafter 'CJPA') is the amendment to the circumstances in which samples may be retained. The Act allows for retention of samples even where charges are dropped or the individual is cleared of the offence. It also allows for such samples to be used for (future) purposes related to the detection and prevention of crime, both in the UK and abroad.

In relation to the taking of samples, the CJPA 2001 amends PACE by removing the need for a superintendent to authorise the taking of an intimate sample with consent or authorising the taking of a non-intimate sample without consent from an individual and substituting it with ‘inspector’[1].

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The Criminal Justice and Public Order Act 1994 was the first serious expansion of the powers to take samples, particularly non-intimate samples – which included mouth swabs and saliva in addition to hair samples: both of which provide DNA information. Such samples could be taken without the consent of the individual if he is charged with a recordable[1] offence, a significant advance on the earlier requirement that the individual is charged with a 'serious arrestable offence'.

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Although DNA matching was first used to catch an offender in 1987, the Police and Criminal Evidence Act 1984 is instrumental in defining police treatment of suspects in the early stages of an investigation. Despite the fact that the Act has been amended on numerous occasions since its inception, analysis of the original legislation provides the starting point to map out the development and expansion of the circumstances in which samples containing DNA can be taken from individuals.

This early legislation severely restricted and placed safeguards on the ability of police to take samples. In brief, intimate samples could only be taken with consent and non-intimate samples (including hair samples) could only be taken without consent where the individual was suspected of a 'serious arrestable offence' and an officer of at least the rank of superintendent authorised the taking. Retention of the sample and the arising DNA fingerprint were also restricted to the person being convicted. If the individual was not convicted then the samples and fingerprints had to be destroyed.

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The European Parliament voted today to adopt a new directive allowing for the retention of data "generated by telephony, SMS and internet, but not the content of the information communicated". This data includes email addresses and location data from cell phones. The directive is highly controversial due to the impact it will have on the privacy of European Union citizens.

Also of concern is the broad discretion that is left to EU member states. For example, data may be accessed for the purposes of combatting serious crime and terrorism, but no concrete definition of these concepts has been provided, allowing member states to transpose their own definitions on the provisions of the Directive. In addition, the length of time that a telecommunications company has to retain the data is left relatively undefined - from a minimum of 6 months to a maximum of 24 months - and member states may extend these time frames. Already several countries have indicated intentions to.

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Privacy International has joined forces with dozens of other human rights and civil liberties organizations around the world to ask the European Parliament to reject a Directive that would seriously compromise personal freedom in the EU. Below is the text of the letter to Members of the European Parliament, and the pdf is also available.

To all Members of the European Parliament

We the undersigned are calling on you to reject the 'Directive of the European Parliament and the Council on the Retention of Data Processed in Connection with the Provision of Public Electronic Communication Services and Amending Directive 2002/58/EC' when it comes to a plenary vote on December 12, 2005.

Adopting this Directive would cause an irreversible shift in civil liberties within the European Union. It will adversely affect consumer rights throughout Europe. And it will generate an unprecedented obstacle to the global competitiveness of European industry.

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