This week saw some movement in the debate over NSA and GCHQ surveillance, and a court case that could have very serious consequences.
The court case first. One Wednesday and Thursday, the court of Appeal held a judicial review into the use of Schedule 7 of the Terrorism Act taken by David Miranda, partner of journalist Glenn Greenwald. Miranda was detained in transit at Heathrow airport under Schedule 7 while carrying encrypted documents that had emanated, ultimately, from whistleblower Edward Snowden.
The question was whether the authorities, knowing who Miranda was, what he was likely to be carrying, and his purpose for holding the documents, had a right to detain him under that particular piece of law.
It’s quite technical, but it comes down to whether carrying the documents Miranda was carrying could be seen as an act of terrorism or an act that could potentially aid terrorism (as the government and police argue) or as part of a journalistic enterprise (in essence, what Miranda is arguing).
Index and other organisations have weighed in in support of the argument put forward by Miranda’s team, as we worry that a ruling against Miranda could have serious implications. Journalism can often operate in dubious areas: whether material “leaked” or “stolen” for example, is a question that can have very different answers depending on who you ask.
In this case, the UK government very clearly maintains that the documents have been stolen and should be given back. Furthermore, they believe that they could fall into the hands of the wrong people – terrorists or hostile states, if not in the control of security services.
That, by the way, was very interesting indeed. The Home Office’s case suggested Russia, where Edward Snowden has been granted temporary asylum, is a hostile state.
The other side of this argument is that Miranda was assisting in journalism. This will involve, on occasion, having documents others would rather you did not have. The act of journalism is to sift these documents and decide where the stories lie within them. There was considerable back and forth on what “responsible journalism” constitutes during the hearing, but ultimately, it must be up to an editor what goes into a paper.
The Guardian’s Alan Rusbridger maintains he has acted with absolute responsibility. And GCHQ have as yet not claimed that agents have been endangered as a result of the Guardian’s revelations.
But at a hearing of parliament’s Intelligence and Security Committee (the ISC) on Thursday, spy chiefs insisted that Britain’s enemies were “rubbing their hands with glee” at the Guardian’s publications, and that terrorist chatter online had “gone dark” (i.e. more difficult to trace) since the first stories had appeared.
What next for the surveillance debate? The ISC performance was generally held to be weak. Rory Stewart MP has suggested it be composed more democratically, with an opposition MP at its head. The general demand on surveillance seems fairly low key: more scrutiny, less scope for random snooping.
Meanwhile the judges will mull over the Miranda case, and, we hope, come to the conclusion that whatever the young Brazilian was doing, it wasn’t terrorism.