22 Aug 2013 | Counter Terrorism, News, Politics and Society
The examination and detention of David Miranda on 18 August at Heathrow Airport has brought Schedule 7 of the Terrorism Act 2000 in to sharp focus. Its purpose is to deter terrorism, an aim that it strives to achieve through facilitating the stop, search and examination (under compulsion) of individuals. I say individuals rather than suspects as there does not need to be any reasonable suspicion that any terrorist offence has been or will be committed. That said the selection of individuals is to be based on “informed considerations” (such as intelligence), should not be used arbritrarily and must only be applied to determine those who may be concerned in acts of terrorism. The power only applies to those believed to be entering or departing the United Kingdom and this belief must be justifiable in the individual circumstances.
Be in no doubt that, whatever the expressed safeguards as to informed selection and justifiable beliefs, Schedule 7 is draconian. It was meant to be. It was aimed at preventing terrorism through exceptional legislative means. It exceptionally permits individuals to be stopped, questioned under threat of prosecution if they refuse to answer and their possessions seized (under threat of prosecution) should they fail to comply. It turns the accepted approach to criminal suspects on its head; the need to demonstrate a prior reasonable suspicion of offending is removed and the protection of silence is pierced by a compulsion to answer all questions. It is a blunt but arguably necessary tool in the fight against terror. The danger is that it becomes a blunt tool to batter down doors unconnected with terrorism. It cannot and should not be applied as a means to achieve any other objective.
In order to obtain confidential or sensitive information such as journalistic content the police must ordinarily undergo a route that involves obtaining a production order. To obtain such an order they must essentially satisfy a court that the order is justified and the protection afforded to the material can be overcome. Evidently Schedule 7 was never meant to take aim at journalism but, given the powers of compelled answers and seizure of material, one can instantly appreciate the fast lane route it would provide to obtaining information for extraneous intelligence purposes. That would be an abuse of the Act, a likely breach of Article 10 (freedom of expression) and unlawful on a number of levels but how can we safeguard against it? “Quis custodiet ipsos custodies” [who will guard the Guardians] wrote Juvenal. Rather apt.
Dan Hyde is a partner at HowardKennedyFsi LLP
This article was originally published on 22 Aug, 2013 at indexoncensorship.org
21 Aug 2013 | Campaigns
Free speech organisation Index on Censorship condemns the cumulative attacks on media freedom in the UK, following whistleblower Edward Snowden’s revelations about mass surveillance by the NSA and GCHQ. These include the recent detention of David Miranda at Heathrow and the destruction of materials held by the Guardian on the Snowden case.
Index opposes the mass surveillance of individuals’ private communications, which chills our free speech and invades our privacy. How free speech and security can reinforce each other, and the extent to which limited restrictions on free speech for security reasons may be allowable in a democracy, are matters of public interest and need open debate. But mass surveillance in a democracy can and should never be justified. Index calls on the government to stop mass surveillance and to respect and support media freedom in the UK.
The detention this week of David Miranda under schedule 7 of the Terrorism Act looks like a direct attempt to intimidate those journalists and others who are investigating and exposing issues of such critical public and democratic concern. The chilling sight of destroyed discs in the Guardian’s offices, their destruction overseen by GCHQ staff, is an affront to our democracy and to media freedom in the UK.
Index on Censorship CEO, Kirsty Hughes said:
‘Legal threats and terrorism laws should not be used to attack investigative journalism. Our safety cannot be secured at the expense of basic human rights that protect the freedom of the press and our right to privacy.’
21 Aug 2013 | Digital Freedom, News, Vietnam
(Photo: Shutterstock)
It has been around a year since Vietnam did something to maintain the title – Enemy of the Internet – that it shares with eight others that include Uzbekistan, Iran and China. Whilst the communist nation has locked up more bloggers so far this year than throughout all of 2012 it is now revisiting last year’s widely derided, and unrealistic, internet draft decree.
The reworked Decree 72, due to come into force September 1, has caused friction as it essentially prohibits people from posting links to news stories, or sections of news articles, on social media sites such as Facebook or the equally popular, locally produced Zing Me.
Pro-democracy websites or those covering religion, politics or human rights have long been blocked. In 2010, Facebook was blocked. A leaked draft regulation requiring ISPs to block the social networking site circulated at the time. The draft was purported to have come from the government, but its veracity was not confirmed. However, access to Facebook quickly became difficult.
A lack of clear mandate from the government and a low-level block meant that people simply fiddled with the DNS settings and claimed the block was down to technical error, not political will. No one took it seriously and the social media site advertised for local staff even when the block was fully in place.
Professor Carl Thayer at the Australian Defence Force Academy in Canberra says that 2009 saw organisation of disparate groups – Catholics, anti-China factions, environmentalists and democracy activists – using Facebook as a rallying area for their shared opposition to Chinese-run bauxite mines in the Central Highlands, an ecologically and politically sensitive area.
However 72 also has something in common with an earlier blog regulation requiring citizens to stick to the personal, and not political themes. As the internet took off in the early- and mid-2000s Yahoo! chat and its blog platform Yahoo! 360 became hugely popular. By 2008 bloggers numbered in the millions. Most writers followed the government’s instructions, though there were scandals that invloved sex bloggers. The Yahoo! blogs also became useful as an alternate news and information source given the state control of media and blocks on sites related to politics, human rights or religion.
At the end of 2008 new blogging regulations limited writings to personal topics. As with Decree 72 posting links to aleady-banned sites was prohibited. The regulation was aimed only at blogs hosted within Vietnam.
“We have issued the circular aiming to create a legal framework to guide bloggers on what can they do and what they can’t do,” said Do Quy Doan, Deputy Minister of Information and Communication, told dpa at the time. The government in fact approached Yahoo! and Google for assistance.
Despite the furore at the time, not much ever came of the regulation, especially since it was designed more as a “guiding document” according to Doan and thus had limited legal use.
In 2010 part of another regulation was aimed at internet service providers and internet cafes. One point required all public computers — those in net cafes popular with teen gamers or hotel foyers — to install Green Dam, a software programme that monitors internet usage.
Unfriendly though it might have been to the idea of internet freedom, it was an ineffective piecemeal approach that quickly fell by the wayside. Those who own internet cafes, which can be found even in one horse towns and are used mostly by boy gamers, have long required background and family checks in order to open.
However Decree 72 goes further, requiring social media users to abstain from posting any news links, even to articles published by state media.
The government has made the point that this new decree is not about restricting freedom of speech but rather aimed at protecting intellectual property. Whilst news sites and blogs repost many news articles without attribution and plagiarism can be a problem in Vietnam it is not Facebook users who are the prime suspects or problem. Website Bao Moi is one of the big aggregators of news in Vietnam and it is not a social media platform.
Those flouting the new law could be more liable for fines than criminal prosecution. Bloggers are more often charged under Article 88 of the penal code, which relates to “conducting propaganda against the state” and can carry a three to 12 year sentence. Prosecuting those who share links or repost from news sites would strain the court and prison systems and fines are easier to issue, argue some.
Vietnam, which often seems to follow China’s security policy, is second only to the nation in the number of dissidents it has detained — 40 in 2013 to date, according to Human Rights Watch.
Vietnam’s government may be an Reporters Without Borders ‘Enemy of the Internet’ but the populace has embraced it, with over a third of the 90-plus million population online. Without government supporting the infrastructure for such growth it could never have happened. Engagement in the ‘knowledge era’ has always been seen as key and broadband was installed up and down the narrow country years ago.
With greater engagement in the world have come issues the government hasn’t been fully equipped to deal with and the internet is the now the main forum for criticism. Whilst the number of genuinely committed political bloggers may be small, the potential not just for critics to organise online but for citizens to share politically compromising material — such as footage of 3000 security police beating and trying to evict farmers from their village to make way for a multi-million dollar development — is huge.
Decree 72 will be largely unenforceable, outside of making the odd example, but it is more realistic than a draft decree on the internet tabled last year that would have required large companies like Google, Yahoo and Facebook to actually host servers within the country and possibly hand user information over to authorities, if asked. ISPs also would have been responsible for content posted on their sites and users would have been required to sign up for accounts with their real names.
The tabled regulation was seen by the foreign business community as a block to further economic growth and global integration. Even decree 72, which is a watered down iteration is expected to “stifle innovation”, according to the Asia Internet Coalition. What may stifle innovation more however is a full and official block of Google and Facebook. According to persistent rumours this will pave the way for local sites or the Russian-owned Coc Coc, which have servers within Vietnam and are more likely to be amenable to government strictures.
As David Brown, who writes regularly on Vietnam’s affairs, pointed out recently in the Asian Sentinel, Vietnam has plenty of ways to deter or stop the more determined political bloggers, such as imprisoning them for tax evasion as in the case of Dieu Cay. However there is the possibility that this may curtail the spread of information by ordinary citizen bloggers with no strong political commitment.
Professor Carl Thayer at the Australian Defense Force Academy in Canberra has said,
“The Decree will have a chilling effect on ordinary bloggers. It is unlikely to prevent more determined internet activists from continuing to post blogs.”
Most recently the government has been discussing policy regarding free chat apps like Viber or Whatsapp. Cell phones have long had huge market penetration and smart phones have been hugely popular in recent years also. Though the word ‘ban’ has been used in state media reports it is apparently linked to revenue losses for local teclos. There is little further information though how, why and when have not been made clear.
This article was originally published on 21 Aug 2013 at indexoncensorship.org.
