Use of Mobile Phone Data Extraction

Request Number: FOI/15700

Category: Incident and Crime Statistics - Cyber Crime

Subject: Use of Mobile Phone Data Extraction

Request and Answer: 
In relation to request number FOI/15700 Police Service of Northern Ireland is providing an NCND response and will explain this further in the response below.

Request Details
Under the Freedom of Information Act 2000, I am writing to ask that you provide me with the following information on your use of mobile phone data extraction:

Request 1 
Does your police force currently carry out mobile phone data extraction in low level crime cases using self-service / downloading kiosks? Please provide your definition of low-level crime.

Request 2 
Does your police force currently carry out mobile phone data extraction in serious crimes using self-service / downloading kiosks?

Request 3 
If your police force is not currently using mobile phone extraction kiosks, have you trialled this in the past/do you have plans to in the future?

Request 4 
Does your police force currently use Hubs to carry out mobile phone data extraction in (a) low-level crimes? (b) serious crimes?

Request 5 
Do you centrally record mobile phone data extracted from kiosks?

Request 6 
If you have a mobile phone extraction kiosk, please provide the name of the company(ies) which currently provide(s) the hardware / software / to whom you pay a license for the relevant tools. If contracts for these tools exist, please also provide the beginning and end dates of these.

Request 7
Does your police force use analytics software to process, analyse or evaluate data extracted from mobile phones? If so, please provide the name of the software or provider.

Request 8 
How many officers currently carry mobile phone examination kits on patrol and/or in vehicles and/or for other operational use in (a) low level crimes? (b) serious crimes?

Request 9
Please confirm whether or not a review has been conducted into the use of self-service kiosks.

Request 10
Please provide copies of the current relevant force level and/or national level guidance for the use of downloading kiosks.

Request 11 
Please provide copies of the current relevant force level and/or national level policy for the use of downloading kiosks.

Answers to Requests 1 - 11
In accordance with the Act, this letter represents a Refusal Notice for this particular request. The Police Service of Northern Ireland can neither confirm nor deny that it holds the information you have requested. 

Section 1 of the Freedom of Information Act 2000 (FOIA) places two duties on public authorities. Unless exemptions apply, the first duty at Section 1(1)(a) is to confirm or deny whether the information specified in the request is held. The second duty at Section 1(1)(b) is to disclose information that has been confirmed as being held. 

Where exemption/s are relied upon Section 17(1) of FOIA requires that we provide the applicant with a notice which 
a) states that fact,
b) specifies the exemption(s) in question and
c) states (if that would not otherwise be apparent) why the exemption applies. 

The full text of exemptions can be found at www.legislation.gov.uk and further guidance on how they operate can be located on the Information Commissioners Office website www.ico.org.uk.

The Police Service of Northern Ireland (PSNI) can Neither Confirm Nor Deny that it holds the information relevant to your request as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply by virtue of the following exemptions:

Section 24(2) National Security
Section 24 is a qualified exemption and as such there is a requirement to evidence any harm in confirmation or denial that any other information is held, as well as consider the public interest.

Section 31(3) - Law Enforcement - The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would or would be likely to, prejudice any of the matters mentioned in subsection (1).

PSNI follow the Information Commissioner’s Guidance in relation to ‘NCND’ and you may find it helpful to refer to this at the following link:

https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/when-to-refuse-to-confirm-or-deny-holding-information/ 

‘Neither Confirm nor Deny’ (NCND)
There may be occasions when complying with the duty to confirm or deny under section 1(1)(a) would in itself disclose sensitive or potentially damaging information that falls under an exemption. In these circumstances, the Act allows a public authority to respond by refusing to confirm or deny whether it holds the requested information. 

The decision to issue a ‘neither confirm nor deny’ response is not affected by whether we do or do not hold the information but relates to the consequences of confirming or denying the information is held. The starting point and main focus in most cases will be theoretical considerations about the consequences of confirming or denying that a particular type of information is held. The decision to neither confirm nor deny is separate from a decision not to disclose information and needs to be taken entirely on its own merits.

However, this should not be taken as conclusive evidence that the information you requested exists or does not exist. NCND is not about the content of the requested information. The aim of providing an NCND response is to leave the question of whether or not PSNI hold the information entirely open. This is to ensure that no inferences can be drawn from the fact that we hold or do not hold the information.

Exemptions Explained 

Section 24(2) National Security
Section 24 is a qualified exemption and as such there is a requirement to evidence any harm in confirmation or denial that any other information is held, as well as consider the public interest.

Section 31(3)- Law Enforcement
Section 31 is prejudice based and qualified exemption, which means there is a requirement to articulate the harm caused by confirming or denying that the information is held as well as carrying out a public interest test.

Harm in Confirming or Denying that Information is Held
Any disclosure under FOI is a release to the public at large. Whilst not questioning the motives of the applicant, confirming or denying if a particular policing tool of this type (in this case mobile phone extraction kiosks) is used by the Police Service of Northern Ireland (PSNI) as part of an investigative process could reveal operational tactics linked to policing, compromise police investigations and/or adversely affect the ability of the PSNI and others to safeguard national security.

It is well established that police forces utilise Digital Forensic techniques in order to counteract criminal behaviour, detect crime, and assist in the apprehension and prosecution of offenders. Modern day policing is intelligence led and law enforcement depends upon the development of intelligence and the gathering and security of evidence in order to disrupt criminal behaviour and bring offenders to justice.  As criminals adapt and exploit new technology, the police need to respond by overcoming hi-tech barriers in order to meet their responsibilities.  In this case the information relates to mobile phone extraction kiosks and mobile phone data extracted from kiosks. 

By revealing specific tactical information such as requested within this request, it would undermine the process of preventing or detecting crime and the apprehension of prosecution of offenders. When considered on a Force by Force basis, a malign individual could identify those most critical to the Law-and-Order sector and specifically target those proving the most assistance. This would have a huge impact on the effective delivery of operational law enforcement as it would leave companies open to further cyberattacks which could have devastating consequences for law enforcement. 

Likewise, given the sensitive areas in which tools of this type may be used, such as counter-terror investigations, to disclose if any particular tools are used would allow criminals and other adversaries to focus on evaluating the particular capabilities of its use.  With this knowledge it would allow criminals and other adversaries to take steps to counteract a specific tool – be it adjusting how they interact and present themselves to take advantage of any weaknesses or gaps in capability they identify. For example, at a simple level, if a policing tool doesn’t search ‘X ‘social media site or was unable to identify ‘Y’ format of images and criminals can establish this, they will exploit this position. The PSNI’s more sophisticated adversaries may be able to go further and take more proactive measures to undermine the tool and/or its provider, and a specific confirmation allows efforts to be focused accordingly.

This detrimental effect is increased if the request is made to several different law enforcement bodies. In addition to the local criminal fraternity now being better informed, those intent on organised crime throughout the UK will be able to ‘map’ where the use of certain tools are or are not deployed. This can be useful information to those committing crimes. It would have the likelihood of identifying location-specific operations which would ultimately compromise police tactics, operations and future prosecutions as criminals could counteract the measures used against them.

Any information identifying the focus of policing activity could be used to the advantage of terrorists or criminal organisations. Information that undermines the operational integrity of these activities will adversely affect public safety and have a negative impact on both National Security and Law Enforcement.

Public Interest Test

Section 24(2) National Security

Factors Favouring Confirmation or Denial – Section 24(2)
Confirming or denying whether information is held in response to the request, would provide the public with information about technologies and the PSNI capabilities. This would reinforce the wider commitment to openness and transparency with the general public and facilitate public debate. Furthermore, owing to the inherent link between transparency and public confidence, confirming or denying whether information is held would be likely to improve the general public's confidencein the PSNI. Over time, an increase in public confidence would be likely to improve public engagement with the police. This would, in turn, lead to an improvement in our ability to both prevent and detect crime, and apprehend and prosecute offenders.

Factors Against Confirmation or Denial - Section 24(2)
Security measures are put in place to protect the community that we serve. To confirm whether any information relevant to this request is/is not held would be useful intelligence to terrorists and individuals intent on carrying out criminal activity. Irrespective of what information is or is not held, the public entrust the Police Service to make appropriate decisions with regard to their safety and protection and the only way of reducing risk is to be cautious with what is placed into the public domain.
The cumulative effect of those with ill-intent gathering information about force capabilities, would have greater impact when linked to other information gathered from various sources. The more information that is disclosed over time will provide a detailed account of the tactical infrastructure, not only at force level but across the country as a whole. Any incident that results from confirming that any information is held would by default affect National Security.

Section 24 – Balancing/Decision
While PSNI recognises the importance of transparency and accountability in policing, these interests must be weighed against the risk that confirming or denying the requested information could prejudice national security interests. The release of this information could be combined with other material to form an intelligence picture that would be useful to those intent on causing harm or undermining lawful operations.

In this instance the PSNI considers that the public interest in protecting national security, maintaining operational effectiveness and safeguarding individuals outweighs the public interest in confirming or denying if this information is held.

Section 31(3) – Law enforcement

Factors Favouring Confirmation or Denial – Section 31(3)
Confirming or denying whether information is held in response to the request, would provide the public with information about technologies and the PSNI capabilities. This would reinforce the wider commitment to openness and transparency with the general public and facilitate public debate. Furthermore, owing to the inherent link between transparency and public confidence, confirming or denying whether information is held would be likely to improve the general public's confidencein the PSNI. Over time, an increase in public confidence would be likely to improve public engagement with the police. This would, in turn, lead to an improvement in our ability to both prevent and detect crime, and apprehend and prosecute offenders.

Factors Against Confirmation or Denial - Section 31(3)
To confirm or deny information is held would compromise the force’s ability to protect the public. Disclosing the PSNI capabilities would provide persons intent on disrupting their work, with information that would assist them to do so. In this case, for the reasons outlined in the evidenced harm, the effectiveness of current and future strategies when carrying out investigations and gathering evidence may be compromised. The safety of the public is of paramount importance to policing purposes, and any increase in crime would place the public at risk of harm. When the current or future law enforcement role of the force may be compromised by the release of information, the effectiveness of the force will be reduced. 

The personal safety of individuals is of paramount importance to the Police Service and must be considered in response of every release.  A disclosure under Freedom of Information is a release to the world and, in this case, disclosing tactical information relating to the extraction of data from computers and other devices, would undermine the evidence gathering process of any investigative inquiry relating to offences, some of which may be serious cases such as murder or rape.

Section 31 – Balancing/Decision
The points above highlight the merits of confirming, or denying, whether information relevant to this request does or does not exist. Having considered the reasons why the PSNI should opt to neither confirm nor deny that information is held, although openness and transparency is at the forefront when considering the public interest, in this case confirmation or denial of information relating to mobile phone extraction kiosks would not be in the public interest.

Whilst there is a public interest in appropriately and effectively engaging with the threat from criminals, there is a very strong public interest in safeguarding National Security. As much as there is a public interest in knowing that policing activity is appropriate and balanced in matters of National Security, this will only be overridden in exceptional circumstances.

The public entrust the Police Service to make appropriate decisions with regard to their safety and protection and the only way of reducing risk is to be cautious with any information that is released. Confirming or denying whether information is or isn’t held would reveal specific policing activity in the digital sphere of investigations and would assist those intent on causing harm. Any incident that results from confirmation or denial could, as a result, affect National Security.

We have found that confirming or denying whether information is held in response to questions of this nature, would make public, areas of police interest. This would directly harm the ability of the PSNI to investigate crime. This could also reveal police capabilities, compromise police investigations and/or otherwise, adversely affect the ability of the PSNI to safeguard national security. We have attached considerable weight to these interests as the primary role of the Police Service is to both prevent and detect crime and apprehend those responsible for committing criminal offences. Therefore, at this moment in time, it is our opinion that for these issues the balance test for confirming, nor denying, that information is held is made out.

However, this should not be taken as conclusive evidence that the information you requested exists or does not exist.