Recent alarming revelations have raised some incredibly important questions about the use of surveillance techniques and Big Brother Watch, alongside seven other foremost campaign croups, have called on MPs to begin an enquiry into exactly how ministers and the security agencies have been interpreting the Regulation of Investigatory Powers Act (RIPA), as reported in today’s Guardian.
We have long warned against the risk of police powers being used far beyond how Parliament intended, and in situations where there is no real cause for suspicion. Stop and search powers have been one of the starkest example of how things can get out of control.
The use of the powers have always been controversial, especially amongst ethnic minority communities, however there was public outrage after it came to light that between 2007-2009 450,000 people were stopped and searched under section 44 of the Terrorism Act; none were convicted or terrorism-related charges.
As the Home Secretary told Parliament today:
“But as important as stop and search undoubtedly is, we have to be frank about widespread public concern regarding its use. Official statistics show that there are more than one million stop and search incidents recorded every year. But on average only about nine per cent of those incidents result in an arrest, and that figure prompts me to question whether stop and search is always used appropriately.”
The revelations about the Metropolitan Police’s efforts to discredit the family of Steven Lawrence have rightly brought cross-party condemnation. Taken alongside disclosures from NSA whistleblower Edward Snowden, the wider questions about the oversight of our law enforcement and intelligence agencies are too important to ignore.
As David Davis MP wrote in the Guardian:
“Sadly this is not an isolated example. Back in 2002 the Labour government set out to smear members of the Paddington Survivors Group, an organisation made up of those injured in the rail crash that killed 31 people. When the group’s leader, Pam Warren, dared to criticise Stephen Byers, then transport secretary, muckraking spin doctors quickly went digging for dirt on her political affiliations and even her sexual history.
Government officials have been on the receiving end of these tactics too. Soon after the communications adviser Martin Sixsmith left the Department for Transport over the “good day to bury bad news” scandal, critical stories appeared in the press. Spin doctors even asked journalists to try and extract embarrassing information from Sixsmith’s friends and colleagues.”
This is before you consider that we still have nowhere near got to the bottom of Britain’s involvement in extraordinary rendition, there has yet to be an inquest into the death of Mark Duggan and the revelations about the Serious and Organised Crime Agency failed to act for six years on evidence of large scale hacking of communications by private investigators and legal firms, among others. This follows the scandal of the Hillsborough inquiry and the atrocious behaviour of some officers.
The Guardian has just reported new claims about GCHQ’s internet surveillance operations.
The article claims:
“One key innovation has been GCHQ’s ability to tap into and store huge volumes of data drawn from fibre-optic cables for up to 30 days so that it can be sifted and analysed. That operation, codenamed Tempora, has been running for some 18 months.
GCHQ and the NSA are consequently able to access and process vast quantities of communications between entirely innocent people, as well as targeted suspects.
This includes recordings of phone calls, the content of email messages, entries on Facebook and the history of any internet user’s access to websites – all of which is deemed legal, even though the warrant system was supposed to limit interception to a specified range of targets.”
Of course, GCHQ’s job is to spy on people, to listen to phone calls and protect us. However, as was discussed in Parliament last week, this operates under a strict regime and any interception is subject to a ministerial warrant. As the Foreign Secretary said:
“To intercept the content of any individual’s communications in the UK requires a warrant signed personally by me, the Home Secretary, or by another Secretary of State.
This is no casual process. Every decision is based on extensive legal and policy advice. Warrants are legally required to be necessary, proportionate and carefully targeted, and we judge them on that basis.”
If then, as the Guardian story claims, that large volumes of data – including content – are being scraped from fibre optic cables then this would have to be authorised by a Secretary of State’s warrant for every individual affected.
As this report notes, interception can be defined under the Regulation of Investigatory Powers Act as “an interception as carried out in the course of its transmission when (i) it is stored so that the recipient can access and collect it later31 and (ii) when the contents of the transmission are stored by the interceptor so as to make them available after the transmission (‘subsequently’).”
However, the Guardian has summarised potential legal loopholes that may significantly handicap the existing safeguards. The main point is that if a communication is “external” to the UK it can be collected under a RIPA certificate, rather than requiring an individual warrant. If two British people were to have a Facebook chat, for example, that chat is routed via Facebook outside the UK. The argument would then seem to be that GCHQ is intercepting it as it enters and leaves the UK, and as such is an “external” communication. We would take major issue with this legal interpretation, as whichever way you look at it the content of a message between two UK citizens is being intercepted without an explicit warrant from a Secretary of State. This is applying a law for landline telephones to the internet in a way that deliberately expands the amount of data that can be collected far beyond what was considered by Parliament.
Nick Pickles, director of Big Brother Watch, said: “This appears to be dangerously close to, if not exactly, the centralised database of all our internet communications, including some content, that successive Governments have ruled out and Parliament has never legislated for.
“Britain has a clear legal process in place to govern the interception of the content of communications and blanket interception is not a part of that system. If GCHQ have been intercepting huge numbers of innocent people’s communications as part of a massive sweeping exercise then I struggle to see how that squares with a process that requires a warrant for each individual intercept. This question must be urgently be addressed in Parliament.
“The fact GCHQ staff have been discussing how light the UK’s oversight regime is compared to the US highlights why we need a wholesale review of surveillance law, including the fact that there is absolutely no judicial process within the current system and the people making these decisions are able to hide in the shadows rather than face public scrutiny.”
Only July 1, Sgt Danny Nightingale will appear at the military court to face a retrial.
Since entering a plea of not guilty at his pre-trial hearing, Sgt Nightingale has been informed he will be medically discharged from the army on February 14, 2014. However, the Military prosecutors intend to continue their prosecution – despite basing their initial case on the fact he was still fit to serve.
Fundraising efforts have raised £10,000 for Sgt Nightingale’s defence but the re-trial will see costs far in excess of this. Danny’s family are facing immense financial pressures and if the funds cannot be raised then there is a real risk Sgt Nightingale will not be able to contest the charge.
I would urge you, if you are able, to support this important cause, to do so. You can donate to the legal appeal here and please do share the link with your friends and family.
A Judge has called South Yorkshire Police’s approach to CRB disclosure “fundamentally flawed” after the force decided to disclose the fact that a teacher had been involved in legal proceedings, despite the fact that the individual was not convicted of an offence.
The ‘old’ CRB system has seen lives ruined and this case is a very clear example of over reliance on a flawed system. After being found not guilty, it is abhorrent that South Yorkshire Police took the legal system into their own hands and used CRB disclosure as a means of issuing their own punishment. There must clearly be a system that ensures children and vulnerable adults are protected, however this must be balanced against unjust intrusion into people’s lives. If something cannot be proven in court then it is not right for the police to disclose details that imply guilt.
The case involves a former teacher, found not guilty of sexually molesting pupils, who has taken South Yorkshire Police to court as they continued to insist on listing the allegations on his enhanced criminal record certificate, which employers can see – effectively destroying his career in the classroom.
In positive step towards transparency Eric Pickles MP, the Communities and Local Government Secretary, has published new guidance which explicitly states that Councils should allow the public to overly film and council meetings.
DCLG was forced to publish the guidance after a string of councils had prevented individuals from recording council meetings on health and safety and legal grounds. The guidance will only apply to English councils, but it certainly creates a serious precedent for councils in Wales.
Public access to meetings is a key part of holding local councils and public bodies to account and it’s wholly wrong for people not being able to film or tweet in public meetings for spurious legal reasons.
Whether through Freedom of Information law, filming council meetings or publishing data, transparency is a critical check on those in power and an essential part of defending our liberties.
Today, along with the Open Rights Group, English PEN and Index on Censorship, we have signed a letter to Culture Secretary Maria Miller highlighting our concerns about the current debate around ‘blocking’ internet content.
It is absolutely right to pursue the removal of illegal content from the internet, but moving to a system where legal content is blocked poses a clear and significant risk to freedom of speech. The triviality of circumventing blocks aside, such a policy risks blocking legitimate websites and setting a dangerous international precedent. After all, who gets to decide what legal content is deemed to be unfit for the British public?
If content is illegal, pursue it, remove it and prosecute those who are responsible. If content is legal, then having a political, non-judicial process to decide what should be blocked is not the right way forward.
The letter is reproduced below.
In today’s Times, Nick Herbert MP has written an article calling for the return of the Communications Data Bill. Although it’s not clear he has read it.
As copyright law prohibits us from reproducing the entire article, we have had to pick and choose which errors to reproduce here. Which has proved tricky, as most of the article is wrong or misleading in some way.
“Clever use of surveillance technology doesn’t recruit terrorists; it puts them in jail
To claim that letting the security agencies find out who terrorist suspects have been talking to is as evil as hacking down an unarmed soldier is a sign of missing judgment.”
Under Part 2 of the Regulation of Investigatory Powers Act, the Security Services and Police already have the power to find out who a suspected terrorist is talking to. How they do this, from covert human intelligence sources, covert surveillance, directed surveillance or intercept is up to them.