The Information Commissioner’s Office (ICO) has released an investigation report into the use of mobile phone extraction (MPE) by police forces when conducting criminal investigations in England and Wales.

When concerns arose about the potential for excessive processing of personal data extracted from mobile phones, the ICO launched an investigation to understand the privacy and data protection risks.

Information commissioner Elizabeth Denham explained: “Many of our laws were enacted before the phone technology that we use today was even thought about – the existing laws that apply in this area are a combination of common law, statute law and statutory codes of practice.

“I found that the picture is complex and cannot be viewed solely through the lens of data protection,” she continued, adding: “As this report makes clear, a whole-of-system approach is needed to improve privacy protection whilst achieving legitimate criminal justice objectives.”

The ICO’s investigation found that police data extraction practices vary across the country, with excessive amounts of personal data often being extracted and stored without an appropriate basis in existing data protection law.

The report explained the significant requirements that an organisation must meet to rely on the legal basis of consent for data extraction, describing an alternative condition for processing: where it is necessary for the performance of a task carried out for a law enforcement purpose by a competent authority.

Denham said: “People expect to understand how their personal data is being used, regardless of the legal basis for processing – my concern is that an approach that does not seek this engagement risks dissuading citizens from reporting crime, and victims may be deterred from assisting police.”

The ICO recommended that a number of measures are implemented across law enforcement in order to improve compliance with data protection law and regain some public confidence that may have been lost.

It also called for the introduction of a new code of practice to improve MPE practices and better support police and prosecutors in their work.

“While the work needed to implement my recommendations must not fall by the wayside, I am acutely aware that this report is issued at a time of unprecedented challenges flowing from the COVID-19 pandemic,” concluded Denham. “I therefore acknowledge that the timeline for change will be longer than usual, but I am keen that we begin to make progress as soon as practicable, and I am committed to supporting that work at all stages.”

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