Lauri Love © Courage Foundation'
On Tuesday, an English judge refused a request by the National Crime Agency to require an alleged hacker Lauri Love to provide his encryption keys. The decision can be read here. It was a serious and embarrassing legal defeat for the agency — a body described by some as “the UK’s FBI”.
This defeat was not — or should not have been — surprising. The agency had attempted to circumvent the relevant law regarding the disclosure of encryption keys, and the district judge at Westminster magistrates’ court ruled that this tactic was not open to it. As the judge notes:
“The case management powers of the court are not to be used to circumvent specific legislation that has been passed in order to deal with the disclosure sought.”
This case, however, is more significant than a junior judge simply putting a law enforcement body back in its box. Read more
People demonstrate against Iceland's Prime Minister Sigmundur Gunnlaugsson in Reykjavik, Iceland on April 4.
Large scale unauthorised data releases are becoming both more frequent and more politically significant. Read more
The Houses of Parliament © Getty Images
Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?
First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.
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This week the Home Office will be launching the new Investigatory Powers Bill. It had previously sought to obtain these powers under the “Snoopers’ Charter” proposals in the last parliament but it failed.
This time the government is sensibly not relying on the brute strength of parliamentary votes or the standard “FUD” tactic of promoting fear, uncertainty and doubt. Such methods of stealth and FUDery may not be sufficient, so something more is needed to get the Bill over the bumps of this first week or two. The Home Office wants your heads to nod along too.
Many people say that the problem with politics is that there is too much cynicism. The problem with UK politics, however, is not that people are too cynical but that they are too gullible. Our politics is beset and bedeviled by the phenomenon of mass nodding along. Just get the catchphrases correct, and you will get all the audience applause you need. The trick is saying the right things at the right time. Read more
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To what extent does the influence of the Kingdom of Saudi Arabia reach into the domestic government of the United Kingdom? And what does the UK get in return? Read more
Chris Grayling in March as Justice Secretary before the general election © Getty Images
The UK’s Ministry of Justice made a welcome announcement this week: “Just Solutions International” is to cease to operate. Just Solutions International (or JSi) was the means by which a group of MoJ civil servants went round the world to sell their supposed expertise to foreign despotic governments on a “commercial” basis, rather than doing what they are there to do, which is to run the prison and probation services of England and Wales. (For background on JSi, including my previous posts on it, see here.) Read more
David Cameron © Getty Images
On Monday, the prime minister told the House of Commons that a specific UK citizen had been killed deliberately by the UK state in a UK military operation:
Today, I can inform the House that in an act of self-defence and after meticulous planning, Reyaad Khan was killed in a precision airstrike carried out on 21 August by an RAF remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqa in Syria. In addition to Reyaad Khan, who was the target of the strike, two Isil associates were also killed, one of whom, Ruhul Amin, has been identified as a UK national. They were Isil fighters, and I can confirm that there were no civilian casualties.
We took this action because there was no alternative. In this area, there is no government we can work with; we have no military on the ground to detain those preparing plots; and there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home, so we had no way of preventing his planned attacks on our country without taking direct action.
The rather legalistic tone and phrasing was no accident; what the prime minister was telling the Commons was not only that the operation had been a success but that it was also “lawful”. Like a defence advocate in court, David Cameron was keen to show that all the required elements to justify an otherwise unlawful action were present: it was “self-defence”, it was necessary — “there was no alternative”, and it was proportionate — there was no other method to achieve the aim of eliminating this target. The statement was, in essence, a formal box-ticking exercise. Read more
Michael Gove © Getty Images
If there is an epitome of just how bad the tenure was of the previous Lord Chancellor and Secretary of State for Justice it has to be the prison books fiasco. This remarkable policy — even more than the time the Ministry of Justice instructed counsel to submit to the High Court that the Lord Chancellor should be able to disregard the rule of law — told observers all they needed to know about the ways in which Chris Grayling was running his department.
The thing about the prison books fiasco was that it was not even a deliberate policy decision: the listing of books as a “privilege” in an elaborate prisoner incentive scheme was the sort of error that a bureaucracy can make from time to time. Nobody perhaps realised, or cared, that making books harder to obtain was contrary to the government’s own project of promoting literacy among prisoners. No government department is really “joined-up”. Read more
Michael Gove at the State Opening Of Parliament © Getty Images
A curious Martian looking down at the government departments in Whitehall would not work out much about the British party political system. The alien would not grasp that there is supposedly a policy division between Conservatives, Labour, and the Liberal Democrats. Read more
It is a misconception to say Conservatives do not “do” human rights and civil liberties — yet Tory civil libertarianism wants the benefits of a libertarian approach to policy in certain cases without the means of placing such libertarianism on a sustainable basis. So Raab’s appointment as a junior minister at the ministry of justice is an intriguing move Read more
A French national flag at the Paris statue "Le triomphe de la Republique" © Joel Saget/AFP/Getty Images
What should be the legal response to terrorism?
This question needs asking, for whatever the security problem, the political solution seems invariably to be more law. Something dreadful happens, and the response of many UK politicians and officials is “tougher powers” and another bill on the statute book.
It is almost as if the passing of a law is seen as a kind of solution in and of itself. Something must be done, and therefore something will be done.
And so in the UK over the last 15 years, we have had a Terrorism Act, then an Anti-terrorism Act, then a Prevention of Terrorism Act, another Terrorism Act, then a Counter-Terrorism Act, and most recently a Terrorism Prevention Act. Currently there is a Counter-Terrorism and Security Bill before parliament.
If statutes were weapons in the war against terror, the UK would be armed to its hilt. And inevitably, the atrocities last week in Paris have prompted the prime minister and home secretary to call for even more laws to combat terrorism.
Part of the reason for this glut of legislation is, of course, the relative impotence of UK politicians. There is, in fact, very little they can be seen to be doing in response to any crisis other than to promote additional laws. Policy making is hard, and good policy making and its implementation is not showy. Sometimes policy making will not need any new laws at all. But for the busy and media-conscious politician, it is easier to ban something, or to create a new legal power, than to actually think through what one is doing. Read more
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A couple of months ago I raised the issue of whether police in the UK were using the Regulation of Investigatory Powers Act (RIPA) to obtain information which is legally privileged.
Legal privilege is important. In simple terms it means that your dealings with your lawyer are strictly confidential, both in respect of the content of the advice you are given (“legal professional privilege”) and also anything done to assist you in preparing a claim or a defence (“litigation privilege”). In essence, when information is under legal privilege then no court order can oblige you to disclose it to the court or other party, including the police.
It seemed obvious to me that there must be some possibility that police could be using RIPA to obtain information which would be covered by legal privilege. There are about half a million public authority requests for “communications data” every year (that is, information public authorities can get from a telecoms or internet service provider other than the actual content of your communication). Also it is now known that the Metropolitan Police have used RIPA to obtain details of calls made and received by journalists. So, if the police are using RIPA to circumvent the usual protection given to journalists’ sources, there seemed no reason, in principle, why the police would not use the same means to get information which would otherwise be legally privileged.
But what was lacking was evidence: to say something could be happening is not the same as saying that it is happening. Read more
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The news that the UK’s Metropolitan Police had obtained the “telecommunications data” of a journalist so as to identify his confidential source has significant implications for criminal and civil lawyers — and also for their clients.
What the Met did was simple: they merely completed a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sent it to the journalist’s mobile telephone service provider. As long as the RIPA request is approved by the appropriate senior police officer, the telephone company provides the requested information by return. This information is not the actual content of a call or voicemail — that would (or should) require an intercept warrant — but all the accompanying “metadata” (a list of calls to and from the mobile, their duration and times, and even the geographic location of the mobile during the call) as well as subscriber information.
For the police, asking for this telecommunications data is routine. Every year the police and other public authorities make about half a million RIPA requests. None of these requests need a warrant, and none need consent. Indeed, the subscriber is not even told the request has been made. All this information is provided silently and easily to the police force or other public body making the request. There are no real safeguards against abuse.
So, if the police can casually use RIPA to obtain the telecommunications data of the political editor of the Sun newspaper, is there any limit on who else they would seek this data on? And even if there was such a limit, how would anyone know that it was not being respected? Read more
The UK’s Metropolitan Police obtained the “telecommunications data” of the political editor of the Sun. They did this without his consent, and possibly even without his knowledge. They also did this without any warrant or other court order. And this intrusion has caused a media sensation.
The revelation was buried in the “Operation Alice” report of the Metropolitan Police into the so-called “Plebgate” affair about what was said (and not said) by the then chief whip of the government, Andrew Mitchell, at the gates of Downing Street in September 2012. This incident led to a senior ministerial resignation, and to four police officers losing their jobs with one also being prosecuted. There are accusations and counter-accusations, and an ongoing libel case. The published report set out part of the Metropolitan Police’s own investigation; on whether Mr Mitchell called the police “plebs” the report is inconclusive.
But deep in the report, comprising paragraph 5.120, is this short and, for many, worrying sentence:
The telecommunications data in respect of Tom Newton Dunn was applied for and evidenced.
What the Metropolitan Police appear to have done was to issue a “RIPA request” (under the Regulation of Investigatory Powers Act 2000) to Mr Newton Dunn’s mobile telephone company for “telecommunications data”. This is not the same as obtaining “intercept” evidence of live calls and voicemails – that would need a warrant. Instead the request would have been for the accompanying data which would be held by the telecommunications provider: the relevant numbers and other details of incoming and outgoing calls, their duration, their times — even the geographical location of the mobile telephone when the calls were received or made. As one can imagine, with this amount of data, obtaining an intercept of the actual content of the calls becomes less important. Read more
Yesterday, in response to the sharing on the internet of horrific and sickening footage of the apparent execution of journalist James Foley, the UK’s Metropolitan Police Service (MPS) provided the following statement to news reporters:
The MPS Counter Terrorism Command (SO15) is investigating the contents of the video that was posted online in relation to the alleged murder of James Foley.
We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.
What was eye-catching about this statement was that “viewing” the material could, by itself, be a criminal offence under “terrorism legislation”. By the time the statement was issued, thousands of people had viewed the video. Was the MPS really saying that each UK viewer faced, at least in principle, a conviction under terrorism law for doing so? Read more
The UK government is pushing through emergency legislation.
The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. Read more
A number of people in England are, it seems, now routinely searching bins for discarded food so that they and others can eat.
And if this was not sufficiently concerning, the state appears to be seeking to criminalise these people for doing so. Read more
Dawn arrests and long bail are two extreme examples of how the coercive power of the state can be applied to individuals.
The first is short and dramatic: a loud knock on the door in the early hours followed by your arrest and removal to a police station, whilst your is home is invaded and thoroughly turned over by a team of uniformed police officers. And the second is painful and ongoing: after the arrest and release on bail, then weeks or months – or even years – will go by without you knowing whether you will be charged or not.
In both situations, there has been a lot of attention by reason of the various police operations connected to the conduct of the tabloid media. Of course, this publicity is not surprising: many of those arrested are, by definition, professional communicators.
But neither dawn arrests nor long terms of bail are particularly a journalists’ problem. Both go wider; it is merely because they have happened to media folk that what has happened and its impact on those involved is clearer for others to see.
Are there any good reasons for these dawn arrests and the long bail? Is there, as a reporter would ask, another side to the story? Or are there wider problems here, which the current media-related cases are acting to bring to light? Read more