Cyber kiosks: Commission on Government response to the Justice Sub-Committee report

We all have the right to privacy and to go about our lives free from unnecessary interference from the police. Mobile phone browsing technology - or cyber kiosks - has the potential to be highly intrusive of this right. The Scottish Human Rights Commission therefore wants to see clear rules and safeguards in place to regulate the use of this technology, and to guarantee robust and independent oversight. 

The European Court of Human Rights has established that it is the state's responsibility to provide clear rules when it comes to police powers to search people, or to compel them to surrender devices for searches. Given that, we are disappointed with the Scottish Government's response to the Justice Sub-Committee's recommendations, which echo our own, around strengthening the legal framework in this area. 

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.

We also note that Police Scotland's legal opinion itself recognises the merits of developing a legislative framework fit for the digital age, and of a statutory code of practice to cover the use of this kind of technology.

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. We look forward to hearing more from the Cabinet Secretary on this point during his evidence to the Justice Sub-Committee on 13 June.