Extraordinary Popular Delusions

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Tag: ripa

Liberty and Others v GCHQ

The legal challenges made by Liberty, Privacy International, Amnesty International, the ACLU and others in the wake of Edward Snowden’s revelations had their first hearing in the Investigatory Powers Tribunal today. The IPT is the tribunal set up under the Regulation of Investigatory Powers Act (RIPA).  It does not usually meet in public, so the announcement below is a bit of a souvenir.

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This is the first of two groups of challenges against GCHQ’s interception and information sharing practices. The other is an appeal direct to the ECtHR (Big Brother Watch v United Kingdom), which the Strasbourg court has decided to fast track.

Today’s hearing was a directions hearing, which means that none of the substantive claims were argued, but questions as to approach were tackled and dates were set. The full hearing has been scheduled for 14-18 July this year – which is rather earlier than the ECtHR will hear their case, even though they’ve decided to fast track. The July hearing will be open to the public, although it sounds like there may also be sections of argument that are closed (more on that below).

dramatis personae

There are three separate groups of claimants: Amnesty International (represented by Kirsty Brimelow of Doughty Street Chambers), Privacy International and Bytes For All (Ben Jaffey of Blackstone Chambers) and Liberty and the ACLU (Matthew Ryder of Matrix Chambers). As far as I am aware, the only groups to have made their initial documentation public are Privacy International and Bytes for All. Privacy International’s claim deals with two main issues: the extent to which information sharing is regulated under RIPA (lets’s broadly call that issue PRISM) and the legality of mass surveillance (that’s Tempora).

The first issue dealt with was Amnesty joining the proceedings. Today’s hearing isn’t quite the first time Snowden’s revelations have been brought before the IPT (even in public). On 30 January, Abdel Hakim Belhaj and Fatima Boudchar were granted a limited injunction against the use of any legally privileged information that may have been acquired by surveillance (the court did not rule on whether any surveillance had in fact happened). The violation of legal privilege in breach of article 6 of the ECHR appears to be part of Amnesty’s argument in this case too, so there was some discussion as to what should be discussed purely in relation to the Belhaj case and what should be included in July’s hearing.

“This tribunal is unique in being able to proceed on assumed facts”

The bulk of the morning hearing saw attempts to reach agreement on the hypothetical premises on which the argument could proceed. Part of the difficulty here is that the UK government is still adopting a strict ‘neither confirm nor deny’ policy when it comes to Tempora – to the extent of not even being willing to confirm or deny how the word is pronounced.  It became evident over the course of the morning that the government would have preferred to restrict the court to an assessment of whether the RIPA framework itself was in accordance with ECHR rather than adjudicating whether particular alleged actions would be legal under RIPA itself or the Human Rights Act.

That approach was decisively rejected (“surely if you’re not allowed to do it at all, we can say so?”) so we will be hearing arguments about whether Tempora activity would be lawful – although the points at issue will be presented as “claimants allegations” rather than “agreed premises”.

In the absence of authoritative advice to the contrary, by the way, Mr Justice Burton decided that the IPT would go with the ‘Latin’ rather than ‘Japanese’ pronunciation of tempora. That means an emphasis on the first, rather than the second syllable.

Metadata and communications data

An interesting question that came up was whether communications data and metadata is synonymous – as it transpired, this was brought up by Matthew Ryder as a result of David Omand asserting that there was a difference (listen back to the LSE debate to hear for yourself). It seems that the government has responded to the effect that there is no meaningful difference between the two terms.

Afternoon

The afternoon session confirmed dates for the main hearing in July and then returned to the main theme of the morning, this time in detailed discussion about how the main issues of the case should be framed. Should the government be able to limit discussion to an assessment of the compatibility of its legal framework with the ECHR or should the question be whether the alleged practices themselves are compatible with the law? Is it possible the alleged practices might not be wholly authorised by RIPA, making the first option too narrow?

The argument on these issues was quite dense: at one point, it appeared as though the government was saying that, if the alleged activities took place, they could only have been authorised by RIPA, but that was not conceded formally. The final formulation is still to be confirmed, but it looks like it will represent a bit of a compromise for both sides.

Neither confirm nor deny

As mentioned earlier, the UK government will still neither confirm nor deny that the Tempora programme exists, despite the amount of information now in the public domain. (PRISM is a bit of a different matter, because its existence has already been acknowledged on the other side of the Atlantic). On the basis of some of Ben Jaffey’s submissions today, it looks like this stance will be challenged in July, particularly if – as seems likely – the government moves to hold a closed session after the open one.

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Buried in the comments: Greenwald, Miranda, Clegg and an indefinite number of documents.

After a Snowden-imposed absence of a few days Glenn Greenwald posted a new blog early this morning. Of the items in the blog proper, I can definitely recommend David Carr’s NYT piece on journalists waging the US Government’s war against journalists for them. Unfortunately, the same has largely been true in the UK – in part due to wholly unadmirable, parochial concerns like the ones John Naughton points to here.

But there are a couple of interesting points hidden in the comments that also deserve to be drawn out.

Nick Clegg and the reasons for Miranda’s detention

The issue of whether the detention of David Miranda under Schedule 7 of the Terrorism Act 2000 was lawful has been the subject of much excellent legal blogging. Pieces I have found particularly useful include those by Jack of Kent, Head of Legal and Adam Wagner. Daniel Isenberg’s roundup of these posts and others is very useful. And on the wider implications of Schedule 7, Tim Hardy’s article  is also well worth a look.

For David Miranda’s nine hour detention at Heathrow to have been lawful, he had to have been detained for the purposes of determining whether he was a ‘terrorist’, under the terms of the Act. Police do not need a reason to suspect someone is a terrorist to use Schedule 7 against them, but those powers must only be used to determine whether in fact they are a terrorist or helping a terrorist. As law and plain language often take divergent paths, there is a debate about how broadly ‘terrorism’ should understood under the terms of the Act – but there isn’t any doubt that uses of Schedule 7 must be justified in this way.

Last Friday the Guardian published a piece by Nick Clegg which merits little comment other than to note how it was edited post-publication. Hidden in the comments to Glenn’s latest piece is an archived copy of the Clegg article as originally published, complete with the now-deleted sentence at the start of paragraph six:

The intent behind detaining Miranda was the same: to retrieve or destroy classified information.

A footnote on the currently available version of the article reads as follows:

• This article was amended on 23 August 2013 after a request from the deputy prime minister’s office based on legal reasons. The footnote was amended on 25 August 2013 to give greater clarity.

Now, I Am Not A Lawyer – or even a legal blogger – but this particular amendment “for legal reasons” doesn’t increase my confidence that Schedule 7 was used in an appropriate way in David Miranda’s case. Just as concerning is that those in positions of power  – not least those who have posed in support of civil liberties in the past – in practice understand, or care, little about what the restrictions on their powers really are. To the extent that, on a point of law that is the talking point of the week, they don’t notice they’ve overstepped the mark until someone pulls them up on it.

Is the UK Government in possession of decrypted Snowden files?

Given that the UK Government, both in overt statements and in freudian slips like that above, has justified its actions in terms of protecting the public from the disclosure of documents of the utmost sensitivity,  I think also it’s worth taking a look at the factual coherence of those statements, regardless of whether they have legal weight or not.

David Miranda was detained at Heathrow for nine hours. During that time, according to his lawyers’ letter prior to legal action (see para 57):

Our client was required to answer numerous questions and to divulge the confidential passwords to his personal computer, telephone and encrypted storage devices.

Note that it is illegal to withhold encryption passwords from police in the UK.

In public comments and legal statements, the Home Office have asserted that Miranda was carrying “tens of thousands of documents… highly sensitive material.” Major media outlets have reported this as fact.

In light of all this, two responses from Glenn Greenwald (first, second) in the comments section of his latest piece are worth noting:

[UK police] haven’t been able to get access to those documents, as they acknowledged today.

In their court filing. I don’t know the exact numbers, but they said they were only able to access something like 75 documents of the tens of thousands they claim he was carrying – and I’d be willing to bet those 75 they claimed they access have absolutely nothing to do with NSA.

A few points to make here – foremost among them that I hope that the Home Office legal submission Glenn refers to makes it into the public domain soon. Secondly, it would make sense that, if indeed David Miranda were carrying journalistic material, he did not also carry the relevant encryption key(s). That would be sensible.

But, that being so, how can the Home Office assert so confidently that Miranda was carrying “thousands of documents”? Unless police have been able to access the file system on one of the devices Miranda was carrying while not being able to access the files themselves, this doesn’t really add up.

Update

For those not aware of them, services like News Sniffer (for some UK publications) and Newsdiffs (US) track the changes in previously-published articles. It turns out that the Clegg article and its subsequent correction coincided with the Guardian changing its main URL, so – in one of those strange internet quirks – it was missed by News Sniffer.  Thanks to @semanticist and @johnleach for drawing that to my attention.

Update II (5/9)

David Allen Green was kind enough to reference this post at Jack of Kent.