Index on Censorship is writing to you ahead of Guardian editor Alan Rusbridger’s appearance before the Home Affairs Select Committee’s hearing on counter terrorism.
We believe that the Guardian’s publication of details of GCHQ’s digital surveillance techniques has been very much in the public interest.
Mass data retention and monitoring is a hugely important issue. As more and more of our lives are lived online, it is only right that British people should know how and why the security services gather and monitor digital information. We should be able to debate whether the security services are acting legitimately, legally and proportionately, or are going beyond what is suitable and proper in any democratic, rights-based society. The Guardian’s revelations should be the beginning of a public debate on how this work is done, and with what oversights.
We are concerned that rather than a debate being opened up, the focus has instead been on criticising the Guardian’s work, with even the Prime Minister threatening to take action against the newspaper if it did not take social responsibility. Index on Censorship maintains that the Guardian has shown great social responsibility in investigating, reporting and publishing the details of this story, having maintained open communication with security services and the DA Notice committee.
The Guardian has also lived up to the responsibility of a free press to reveal facts and issues of interest to the public. A British newspaper should be able to report on these issues without fear of retribution. But comments made by politicians and the security services made have led many round the world to question Britain’s commitment to press freedom. For example, the New-York based Committee to Protect Journalists rightly pointed out that: Governments around the world look to the UK as a model for media policies, but in this case, Cameron seems to be taking a page from the book of less enlightened governments that invoke ‘social responsibility’ to ward off valid criticism.
Finally, Index on Censorship is troubled by the use of counter-terror measures to detain David Miranda, the partner of former Guardian journalist Glenn Greenwald. We believe the use of terror legislation to obtain journalistic materials, without court oversight, is a threat to free expression and to anyone involved in journalism. As part of a coalition of newspapers, journalists organisations and campaigners which submitted an intervention to the judicial review of Mr Miranda’s detention at Heathrow airport, we are concerned that using Schedule 7 of the Terrorism Act 2000 against people engaged in journalistic activities runs a real risk of conflating journalism–particularly journalism investigating the intelligence services–with terrorism.
Revelations about mass surveillance operations by the NSA and GCHQ have caused outrage in Europe, South America and the United States. There have been demonstrations and angry interventions by heads of state, and even President Obama concedes that a debate needs to happen. But in Britain protest and discussion are very close to being silenced.
The Guardian newspaper, which led the New York Times, the Washington Post and Der Spiegel in publishing material from the NSA leaks, is almost alone in believing that mass civilian surveillance is a matter of vital public interest. And now the British government, Parliament’s Intelligence and Security Committee, the intelligence agencies and even some sections of the media seek to isolate the Guardian and shut down the debate with claims that these disclosures aid terrorists and put national security at risk.
This must not be allowed to happen. This independently organised meeting at RIBA, on November 4, is called to support the Guardian’s reporting and to assert the right to a full national debate, involving all parties, about surveillance powers and the need to ensure
that the intelligence services work within the rule of law and are subject to genuine Parliamentary scrutiny and oversight. That is the only way for a democracy to react to revelations that affect everyone’s liberty.
Supporters include: Timothy Garton Ash (Oxford University and author of The File), Anthony Barnett (Cofounder Charter 88 and openDemocracy), Rory Bremner (Writer and performer), John le Carré (Author), David Davis (Conservative MP), Brian Eno (Musician and producer), Stephen Frears (Director), Alex Graham (Founder and CEO, Wall to Wall TV), Baroness Helena Kennedy QC (Lawyer and Principal of Mansfield College, Oxford), Peter Kosminsky (TV director and governor of BFI), Simon McBurney (Founder and artistic director, Theatre Complicite), Suzanne Moore (Columnist), Lord Pannick QC (Leading public law and human rights lawyer), Dr Elaine Potter (David and Elaine Potter Foundation), Philip Pullman (Writer), Richard Rogers (Architect), Ruthie Rogers (Chef), Philippe Sands QC (Leading human rights lawyer), Juliet Stevenson (Actor, writer and director), Neil Tennant (Singer-songwriter), Jimmy Wales (Founder, Wikipedia) and Sam West (Actor).
Also supported by the following organisations: Index on Censorship, Big Brother Watch, Human Rights Watch, openDemocracy, Open Rights Group, English PEN, The Manifesto Club, and Reprieve
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.
Statement from Gwendolen Morgan of Bindmans LLP after David Miranda wins a limited injunction preventing UK government from “inspecting, copying or sharing” data seized from him at Heathrow Airport on 19 August.
Miranda, the partner of Guardian journalist Glenn Greenwald, was detained and questioned by UK police for nine hours, and had data drives, believed to hold information leaked by NSA whistleblower Edward Snowden, seized from him.
According to the Guardian,
The court ruled the authorities must not inspect the data nor distribute it domestically or to any foreign government or agency unless it is for the purpose of ensuring the protection national security or for investigating whether Miranda is himself involved in the commission, instigation or preparation of an act of terrorism.
But the ruling also meant that data cannot be used for the purposes of criminal investigation
The examination and detention of