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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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2002 - 2004

1st Jan to 9th Sept 2005


Annoying someone via the internet anonymously is illegal in the US

Posted by James Hammerton @ 2:20 am on 22 January, 2006.
Categories political liberties, democracy and the rule of law.
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Bruce Schneier recently commented on Bush’s signing into law of a bill that would make it illegal to annoy someone, anonymously, via the internet. From the article Schneier cites:

Buried deep in the new law is Sec. 113, an innocuously titled bit called “Preventing Cyberstalking.” It rewrites existing telephone harassment law to prohibit anyone from using the Internet “without disclosing his identity and with intent to annoy.”

To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section’s other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice. The plan: to make it politically infeasible for politicians to oppose the measure.

However, Schneier writes in an update to his article:

EDITED TO ADD (1/9) Some commenters to BoingBoing clarify the legal issues. This is from an anonymous attorney:

“The anonymous harassment provision ( Link ) is the old telephone-annoyance statute that has been on the books for decades. It was updated in the widely (and in many respects deservedly) ridiculed Communications Decency Act to include new technologies, and the cases make clear its applicability to Internet communications. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 829 n.5 (E.D. Pa. 1996) (text here), aff’d, 521 U.S. 824 (1997). Unlike the indecency provisions of the CDA, this scope update was not invalidated in the courts and remains fully effective.

In other words, the latest amendment, which supposedly adds Internet communications devices to the scope of the law, is meaningless surplusage.”

Here we have two phenomena I’ve noted in recent British bills, firstly measures included in bills which are not related to the matters the rest of the bill addresses — making it difficult for MPs to vote them down without jeopardising legislation they might otherwise support — and secondly, measures that criminalise actions that are already criminalised. Such tactics seem to me calculated to confuse and, with respect to criminalising already criminalised actions, to giving a visible impression of action on the part of the government.

Indeed, military action and large changes in taxation and spending aside, passing legislation is the most visible manner in which a government can portray itself as taking action — a government that pledges to tackle a problem will most likely pass legislation ostensibly aimed at dealing with it.

Very few people will actually read the legislation to see if it does what it says on the tin. Unfortunately this will likely include many elected representatives — the volume of legislation in Britain at least makes reading every clause of every bill impossible, and many MPs will focus only on “flagship” legislation and even then will rely on the reports of select committees, or the governments own claims about the legislation when deciding how to vote.

With regards to the freedom of speech aspects of the measure discussed above, the US constitution should hopefully provide some protection for people and might be used at least to blunt it’s impact. Were such a measure to be passed in Britain there seems to be no constitution worth speaking of. The Human Rights Act is the closest thing we’ve got, but consider the difference between the American Bill of Rights’ first amendment and article 10 of the ECHR (which the Human Rights Act enshrines in UK law. The latter is full of holes.

Lords defeats for British government on ID cards and Terrorism bills

Posted by James Hammerton @ 10:06 pm on 17 January, 2006.
Categories privacy and surveillance, political liberties, democracy and the rule of law.
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The House of Lords has passed some opposition amendments to both the Identity Cards Bill and the Terrorism Bill.

Regarding the Identity Cards Bill, it has been amended so that the government must disclose their estimates of the full costs of the scheme before it can go ahead:

The victory by Tory and Liberal Democrat peers together with some Labour rebels means that Charles Clarke, the Home Secretary, will have to come up with hard figures for the scheme, which an independent report has warned may cost as much as £19 billion over the next decade, about the same as the development and purchase cost of the Royal Air Force’s new Eurofighter.

The Home Office will now have to present its costings to the Commons and the National Audit Office, meaning that Labour MPs opposed in principle to what has been mocked as a “breathing licence” will get another chance to vote against it.


Yesterday’s vote of 237 to 156 follows two reports from the London School of Economics warning of the potentially colossal price of equipping every adult in Briton with a card. The only figure made available by the Home Office so far is one for annual running costs of £584 million.

But that refers only to the Home Office and not to other departments that will have to alter systems and install equipment such as “readers” capable of verifying biometric data.

In addition, there is no mention of the enormous capital cost. The LSE has warned that the charge for each card may have to be £300 just to cover costs.

The Government has concealed its estimate on the grounds that IT companies bidding to supply hardware and software would use it as a minimum start point in negotiations. But that argument was rejected by opposition peers, who said that such a lucrative deal would have companies scrambling to undercut each other.

Clearly the government will say anything to try and hide the full cost to taxpayers represented by this scheme. Having to produce a full costing of the scheme may help those who wish to see it kicked into the long grass, by delaying it further.

Meanwhile the Lords have also passed amendments to the Terrorism Bill, removing the offence of glorification of terrorism and redefining the offence related to publishing a terrorist publication so that someone would commit the offence only if they acted recklessly or with intent.

30,000 people wrongly matched to names on US terrorist watch list

Posted by James Hammerton @ 7:46 pm on 7 January, 2006.
Categories privacy and surveillance, political liberties, democracy and the rule of law.
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I have a backlog of items I wish to mention on this weblog, the first of which is this one…

On 6th December 2005, an article from ZDNet reported that:

WASHINGTON–About 30,000 airline passengers have discovered since last November that their names were mistakenly matched with those appearing on federal watch lists, a transportation security official said Tuesday.

Moreover the article states:

After submitting their notarized forms and identifications, and waiting for evaluations, the vast majority of the people mistakenly matched to names on the watch list have now been added to a “clearance” list. That doesn’t mean their names are erased from the watch list. In fact, travelers who go through the paperwork are told, Kennedy said, that “it will not quote ‘remove’ you from the list because the person we’re still looking for is out there.”

Instead, their names are put on the separate clearance list, which means they typically can’t check in for flights at an unmanned kiosk and must approach the ticket counter to explain their situation and have an airline employee match their name to the clearance list.

So, after being repeatedly hassled by security staff at airports, you find that your name mathces one on a government watch list. You tell the government there must be some mistake. They get you to fill in a form requiring 3 notarized forms of identification and wait for 45 to 60 days for them to evaluate your case. After which, if they conclude that there is indeed some mistake, your name gets put on another list, and you still find yourself having to explain things to the airport staff each time you travel.

And it could be worse. If you’re really unlucky you might find yourself detained, schackled, beaten, photographed nude and injected with drugs simply because your name matches that on someone’s list.

Some much for the innocent having nothing to fear from such measures.

One would have hoped the global war on terror was conducted by people who realise that a name might be shared by more than one person…

See Bruce Schneier’s article for further discussion.

Entertainment business wants data retention to be used to track copyright infringement

Posted by James Hammerton @ 8:23 pm on 3 December, 2005.
Categories privacy and surveillance, democracy and the rule of law.
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The Register reports that the Creative Media and Business Alliance have written to MEPs asking for retained communications data to be used to enforce copyright, and other intellectual property rights:

The entertainment industry is trying to commandeer the proposed European directive on data retention to help it prosecute filesharers in the European Union, it has emerged.

The newly-formed Creative and Media Business Alliance (CMBA), an informal grouping (it says) of companies including Sony BMG, Disney, EMI, IFPI, MPA and Universal Music International, says it wants the data protection directive to be modified specifically so that it can be used to go after pirates.

In a letter to all MEPs, the CMBA said:

“We would appreciate your support in ensuring that this becomes an effective instrument in the fight against piracy”.

It went on to ask MEPs to amend the directive so that it covers all criminal offences, not just the “serious” ones of organised crime and terrorism, and that law enforcement’s access to the data should not be limited.

When it voted on Wednesday, the European parliamentary committee on civil liberties did keep the word “serious”, but only as defined in the European arrest warrant, which includes piracy.

According to Suw Charman, founder of the Open Rights Group, this means the door is officially open for the entertainment industry to use legislation designed to protect European citizens from terrorists to prosecute them instead.

The push for the retention of communications data has hitherto been justified as a means of fighting terrorism and organised crime. Now we see the entertainment industry are pushing for it to be used to investigate copyright infringement. This is a pattern one can often see in government, where legal powers introduced for one purpose are later extended for other purposes, i.e. function creep.

The Open Rights Group note how this proposal ties in with another proposal to make copyright infringement a criminal offence (it is currently merely a civil offence):

Now tie this in with IPRED2, another nasty bit of legislation which criminalises all “intellectual property” infringement on a commercial scale and “aiding and abetting such infringement”, with very thin definitions of what “commercial scale” or “intellectual property” means. The two directives together become even more alarming.

IPRED2 mandates that the police work with rightsholders to pursue suspected cases of IP infringement - including patent infringements - or merely vocal encouragement of infringement. And the Data Retention directive provides them with reams of data they can mine for evidence against these suspected infringers.

At the latest IPRED2 hearing, that’s exactly what the CBMA’s parent organisation, the International Federation of the Phonographic Industry (IFPI), demanded.

This opens up a very ugly can of worms where entire industries can get unparalleled powers of investigation, provided at the taxpayer’s expense.

Moreover, if the CMBA get their way, the number of data retention enquiries that the telcos and ISPs will have to process will be far higher than if restricted to terrorism and serious crime. This will put far more pressure on the telcos and ISPs who will not only have to bear the cost of storing the data, but also of providing access to the information to the authorities.

They also point out that:

Both Data Retention and IPRED2 are being frogmarched through the European Parliament at an alarming speed. Votes are being held by three committees over the next few days on Data Retention, with secret meetings going on in the background between the Council, the Commission and the Parliament, with the aim of reaching a tacit agreement on what this legislation should look like.

On 13 December 2005, the Parliament votes on the Data Retention directive. Usually, they get two stabs at it, with the Council having a say in between. This time, they get just one vote.

This time, MEPs will have just a few days between being presented with the proposed legislation as drawn up in the secret meetings and being expected to come to an informed, considered decision on whether it should become law.

On the progress of the UK’s Terrorism Bill

Posted by James Hammerton @ 9:33 pm on 24 November, 2005.
Categories democracy and the rule of law.
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The Terrorism Bill has now reached the committee stage in the House of Lords, having passed its second reading.

Proposals to allow the police to hold terrorist suspects for upto 90 days without charge were defeated in the Commons, with the Blair government suffering its first defeat since being elected in 1997. However, the Commons accepted an amendment to hold the suspects for upto 28 days without charge, doubled from the time limit that came into force in 2004.

The offences of incitement and glorification of terrorism, raised as a concern by Spy blog, and this blog, remain however.

Clearly, despite the government’s defeat, this bill still represents yet another assault on civil liberties and is likely to do so even once the Lords have dealt with it.

Regarding the 90 days detention, Andy Hayman, the Assistant Commissioner of the Metropolitan Police sent this letter to Charles Clarke outlining the case for the extended detention. The letter was often cited by those who supported the measure. have demolished his case here.

It seems to me that, given the numerous broad and vaguely defined offences available in existing British legislation, ranging from membership of a proscribed organisation to possessing information useful to someone who wishes to carry out acts of terrorism, it is highly unlikely that after 14 days, the police would not be able to charge anyone they have genuine reason to believe is involved in terrorism with something. Once charged with an initial offence, the suspect could be detained and questioned whilst they build a case for more serious offences.

There is also nothing to stop someone being quickly re-arrested if new evidence arrives or to keep that person under constant surveillance. And all this is without considering the use of control orders. Quite simply, the state already has more than enough legal weaponry for dealing with terrorists.

UK Terrorism bill threatens blogs and websites.

Posted by James Hammerton @ 11:57 pm on 31 October, 2005.
Categories privacy and surveillance, political liberties, democracy and the rule of law.
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Update: I got it wrong on timing of the committee stage of the bill. It takes place over 2 days, the 2nd and 3rd of November respectively. See this link. Sorry for the mistake.

The blog, a British weblog concentrating on civil liberties and surveillance, berates the British blogosphere for failing to cover and/or analyse the Terrorism Bill 2005, which passed its second reading last week in the Commons, with the support of the opposition Tory Party (though the Lib Dems opposed). have their own detailed analysis of this bill split across this article, this article and this article.

In this article, I’ll concentrate mainly on the threat to freedom of speech identified by in the second of the above articles, in particular the threat to websites and weblogs in the UK. I intend to do a fuller analysis of my own later.

The threat arises from section 1, section 2 and section 3 of the bill:

  • Section 1 makes it an offence for someone to publish a statement that its intended audience are likely to understand as a direct or indirect encouragement or other inducement to instigate, prepare or commit acts of terrorism. This is punishable by upto 7 years in jail.
  • Section 2 makes it an offence for someone to publish or distribute a “terrorist” publication. A terrorist publication includes publications that directly or indirectly encourage or incite acts of terrorism and publications that are useful to those preparing, instigating or committing acts of terrorism. Again this offence carries upto 7 years in jail.
  • A defence in both sections is that the user published the article only in the course of providing an electronic service, was unaware of its nature and did not endorse the publication in question.
  • Section 3 specifically relates to the internet. It gives a police constable the power to issue a notice to someone declaring that in his opinion material they’ve published electronically is “unlawfully terrorism-related” (i.e. falls under the categories covered in sections 1 and 2). The notice may order the person concerned to remove the article or alter it so that it is no longer “unlawfully terrorism-related”. The person has 2 days to comply with the notice. Failure to do so is deemed to be an endorsement of the article in question.

The threat to freedom of speech comes from the following aspects of these sections:

  • The vaguely defined nature of the offences. E.g. what constitutes “indirect encouragement or inducement”? What counts as “preparation”? Taking the words literally, it seems that to have a prima facie case under section 2, all the govt/police need to claim is that:
    • the article in question contains information useful to terrorists,
    • that those who read it are likely to understand it as being contained in the publication wholly or mainly to be useful to terroris.

    Note that the publisher’s intent is not relevant to these judgements.

  • The ability of a constable to demand an article be removed or modified with 2 days based on his personal opinion, combined with the publisher being deemed to have endorsed the article if he fails to comply in the allotted time. This effectively makes the constable’s word law since failure to comply means you’ve committed an offence. It is a recipe for abuse/bullying by unscrupulous police officers.

To see how wide an application this could have consider that articles analysing and dissecting anti-terror laws could be deemed to be useful to those wishing to commit acts of terrorism. If a police officer sends a notice on this basis, you have to comply within 2 days or face a prosecution and upto 7 years in jail.

There are many other disturbing features of this bill such as upto 90 days detention without charge for those suspect of terrorist offences, I intend to cover these later. In the meantime, as well as the above articles, the Chartered Institute of Library and Information Professionals are trying to raise awareness of the threat this legislation poses to libaries.

Note that the committee stage of this bill will be over on Wednesday 2nd November. Time to make use of WriteToThem

Juries to be dropped in British fraud cases

Posted by James Hammerton @ 8:19 pm on 30 October, 2005.
Categories democracy and the rule of law.
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The Telegraph reports that the British government has laid a draft order before Parliament which if passed will enable judges to sit alone in fraud cases:

A draft order was laid before Parliament to implement provisions allowing judges to sit alone in serious or complicated fraud cases. If the order is approved, it will apply to defendants tried from Jan 1.

The move is expected to affect between 15 and 20 cases a year. It will apply only to cases where the judge considers that the trial is too “burdensome” for a jury and the Lord Chief Justice has given his approval.

Simon Hughes, the Liberal Democrat MP, said yesterday that the Government’s move would be opposed in the Lords.

“Juries are the best people to be the judges of fact, and have the overwhelming confidence of the public to do the job,” he said.

More on Australia’s draft anti-terror bill

Posted by James Hammerton @ 12:07 am on 29 October, 2005.
Categories democracy and the rule of law.
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Following on from my earlier article on Australia’s version of control orders, more information can be found via
Bruce Schneier’s report on the draft anti-terror bill.

A draft of the bill can be found here.

According to this ABC news article, the Australian government has been justifying the legislation as being no different to that passed in the UK, however this is disputed since Australia does not have an equivalent of the UK’s Human Rights Act:

A British legal expert says the Federal Government’s proposed new anti-terrorism laws offer limited protection against human rights violations, in comparison to UK laws.

Prime Minister John Howard has acknowledged that the British anti-terrorism laws have influenced what he is proposing for Australia.

Australian-born human rights barrister Dr Angela Ward has told ABC’s Lateline program the key difference in the laws lies in the fact that the UK terrorism legislation is subject to review against its Human Rights Act.

“That vests judges with powers to review conduct of the authorities that are really much broader than the Australian powers,” she said.

“So what I find most worrying about Mr Howard’s assertions that the Australian legislation is just like the UK regime, it really only tells half the story because the UK legislation can not be read in a vacuum.”

Dr Ward says human rights provisions, such as those requiring the humane treatment of people in preventative detention, must be extended to apply to all sections of the legislation.

She says major changes are needed to meet the demands of state and territory leaders for adequate parliamentary and judicial review of the laws.

“At the moment it’s only being dedicated to specific elements of the national security legislation and what’s really needed is much broader legislative reform before the type of protection that COAG [the Council of Australian Governments] would like to see is actually put in place,” she said.

A key point to note from this is the example of British legislation being used as a reference point by other countries. Clearly, the impact of British legislation is not confined to the UK.

So when the UK authorities pass legislation that weaken or remove fundamental protections, such as the right to a fair trial, the presumption of innocence, they not only weaken the rights of British residents, they also make it easier for other democracies to do so, especially those that were former colonies and/or draw from similar legal traditions as Britain.

Another point to note is the view of the Human Rights Act as a check on the British legislation. Whilst I do not think this is a particularly strong check — it can only be invoked once the legislation is used against someone, i.e. after the fact, and the rights defined are weak, in most cases being full of exceptions — it is perhaps the main legal defence for someone finds themselves wrongly placed under a control order. The British government has removed most of the other protections that existed prior to the HRA.

I shall provide a summary of the proposed Australian legislation once I’ve had a chance to digest it.

Religious Hatred Bill amended in House of Lords

Posted by James Hammerton @ 11:47 pm on 27 October, 2005.
Categories political liberties, democracy and the rule of law.
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The BBC recently reported that the Religious Hatred Bill was amended, against the British government’s wishes, in the House of Lords:

Peers voted by a majority of 149 in favour of a cross-bench move to put freedom of speech safeguards into the Racial and Religious Hatred Bill.


Opponents of the bill argue that people can choose their religion, unlike their race, and so should not be protected against offence or criticism.

Ministers reject claims that the current bill would stop free speech.

But comedian Rowan Atkinson has called it “draconian”.

Last week a group of opponents, including him and former Archbishop of Canterbury George Carey, suggested a series of amendments.

These include making sure nobody is found guilty of religious hate crimes unless it is proved they intended to stir up hatred.

Only “threatening words” should be banned by the bill, not those which are only abusive or insulting, they added.

Note that the government could force the issue by invoking the Parliament Act to force the bill through unamended, though this would take another year.

Australia proposes its own version of control orders

Posted by James Hammerton @ 10:21 pm on 23 October, 2005.
Categories political liberties, democracy and the rule of law.
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The Australian reports that the Australian government is proposing its own version of control orders:

UP to 80 Australian Muslims could immediately be placed under effective house arrest under the Government’s proposed anti-terror laws.

The laws mean they could each be required to wear tracking devices, or prevented from working, or using the telephone or internet, or communicating with certain people.

For the first time, the laws will cover the estimated 80 Australians who have received or provided training with a listed terrorist organisation before 2002.

Previously, the Government has had no effective powers over these people, almost all of whom are Muslims, because laws prohibiting training with terrorist groups came into force only in July 2002 and were not retrospective.

However, under the proposed new laws, such people can be subjected to tough so-called control orders if authorities still believe they pose a security risk.

The provisions, which until now have escaped public scrutiny, are aimed at helping authorities monitor people who have trained with terror groups and are still deemed to pose a potential risk.

However, they will anger critics of the laws, who will argue they can be misused to “heavy” anyone purely on the basis that they have had past links with groups that are now illegal.

The Australian Muslim Civil Rights Advocacy Network slammed the proposed laws yesterday as “a backdoor way to limit the freedoms of people who can’t be found guilty of a crime”.

The laws will apply to anyone who has trained overseas with any of the 17 banned terror groups, including al-Qa’ida, Jemaah Islamiah, Lashkar-e-Taiba, Abu Sayyaf and Palestinian Islamic Jihad.

The intent of the law is that authorities leave these people alone if it is considered they no longer pose a security risk.

But if they are deemed to be a threat, the Government can impose a wide range of restrictions on their freedoms.

These include requiring that a person be fingerprinted and photographed and that they report to specific places at specific times. They may be fitted with a tracking device and banned from going to certain places or speaking with certain people or groups. They may also be banned from working or from using the internet or leaving Australia.

(Lead from Samizdata).

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