The week in mass surveillance

(Photo: David von Blohn / Demotix)

(Photo: David von Blohn / Demotix)

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.

This article was originally posted on 8 Nov 2013 at

What does the Protection of Freedoms bill mean for free speech?

The UK government’s Protection of Freedoms Bill is highly relevant for anyone interested in Article 10 rights. While the bill gives the impression of positive steps for the protection of civil liberties, critics are quick to warn of its limitations and the government’s piecemeal approach. The bill, now in between first and second reading stage in the House of Commons, looks at:

  • freedom of information – extending the freedom of information regime to cover companies wholly owned by two or more public authorities
  • right to data – creating an obligation on departments and other public authorities to proactively release datasets in a reusable format

SA Mathieson, news editor of Guardian Government Computing, is optimistic that this will give a “bit more freedom” to government data.

Photographers will be especially interested in the part on counter-terrorism:

  • This Part introduces safeguards against the misuse of counter-terrorist legislation by permanently reducing the maximum period of pre-charge detention for terrorist suspects to 14 days and replacing the powers to stop and search persons and vehicles without reasonable suspicion in section 44 of the Terrorism Act 2000 with a power that is exercisable in significantly more restricted circumstances.

In the bill’s consultation stage [PDF], civil liberty groups and the National Union of Journalists raised concerns about stop-and-search powers under section 44 of the Terrorism Act and that “police on the ground were not sufficiently aware of restrictions on how the law should be applied”. Cian Murphy writes on the Guardian Legal network:

Section 44 was a wholly illiberal provision which allowed police officers to stop and search individuals in designated areas without having to show reasonable suspicion. The subsequent sections elaborated on that power. The government has been committed to repealing the section since last summer – but only after the European court of human rights held that it was a violation of the European Convention on Human Rights (ECHR).

But don’t celebrate too soon. As Murphy reports:

Nonetheless, police powers abhor a vacuum, and as signalled in December, the section 44 power is replaced with new stop and search powers provided for by sections 59 to 62. The proposed new powers, at first glance, may be an improvement on section 44. But they have already been criticised and will require more considered scrutiny over the coming months – especially in light of possible amendments as the bill moves through Parliament.

The issues extend beyond the scope of this bill. Index on Censorship is currently in discussions about freedom of expression protection in the Public Order Act and Communications Act. We’re also interested in hearing your thoughts about the new bill, and its effect on free speech. Tweet us @indoncensorship, or leave a comment below.