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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
Large scale unauthorised data releases are becoming both more frequent and more politically significant. Read more
There have been two main responses to the leak of the Panama Papers.
The first has been a great shrug of indifference: so what? The rich and powerful do things that only the rich and powerful can do. The second is a warm, indeed enthusiastic, welcome to this dramatic exercise in transparency: we can now see how the rich and powerful do the things that only the rich and powerful can do. The political consequences of the leak, for example in Iceland and the UK, indicate that the transparency in turn is leading to greater accountability.
Are these the only valid responses? Is there any issue here about privacy and the right to confidential legal advice? Or are such concerns mere fusspottery and point-missing? Read more
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.
The UK government on Wednesday published a draft Investigatory Powers Bill for public and parliamentary consideration. It was a significant move in many ways.
The intention is that the draft Bill will be the basis of consultation, with a revised Bill being published in 2016. This revised Bill will need to be enacted by the end of next year, as the current Data Retention and Investigatory Powers Act expires on 31 December 2016 and one section of it has been quashed by the High Court as from March 2016.
Publication is therefore the start of what may be a year-long legislative process. On the face of it, the government intends to take the legislative process seriously. The Bill has been published with extensive explanatory materials, fact sheets and impact assessments. The page count of those documents is higher than that of the bill itself — the government wishes to give the impression this process is to be done properly and thoroughly. Read more
One should always be wary of charming people, for they are used to making you feel good about them getting their way. And one should always be cautious of organisations whose first line of defence when placed under scrutiny is something emotive and manipulative like “won’t somebody, please, think of the children?“.
Neither of these wise stances necessarily mean that Kids Company and its charismatic and well-connected head Camilla Batmanghelidjh have done anything culpable. The truth is that, at this stage, very few people know what happened before the UK charity closed in a financial mess.
But what is plain is that subjecting any “third sector” service provider to any meaningful accountability is difficult, and that this needs to change. The appropriate mechanisms are not in place, there is almost no transparency and any public criticism can be deterred as appearing “unhelpful”. Who would want to be responsible for stopping what could be valuable and wonderful work? Read more
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
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
One innocent pleasure is to ask someone concerned with “policy-making” what the term “policy” actually means.
Often the person you ask – whether they are a politician or an official, a “public policy” lobbyist or some self-proclaimed “policy wonk” – will not have an instant answer. It is almost as if the word “policy” is such a commonplace in their world, few have thought about to what it refers. Read more
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
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 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
The Ministry of Justice – which is responsible for the prison system in England and Wales – decided in November 2013 that it will restrict books that can be received by serving prisoners. This week the excellent Howard League drew public attention to this, and yesterday a number of distinguished authors signed a letter of protest.
We need to be clear as to the nature of the policy. The relevant document is here (Word document, see especially pages 45 and 56). It is not a general “ban” on books as such. Prisoners will still have access to the books in the prison library and can have up to 12 books in their cell – but access to any books sent from outside prison – either purchased or sent by friends and family – will only be as rewards for good behaviour. The prospect of books, like trinkets, will be dangled to prisoners as treats. Read more