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Inchoate offences and freedom of speech

Posted by James Hammerton @ 8:21 pm on 11 November, 2007.
Categories political liberties, democracy and the rule of law, freedom of speech, British politics.
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As promised, I have produced a briefing document on the Serious Crime Act(SCA) 2007. Thus far, it contains sections on Serious Crime Prevention Orders (a topic I’ll return to in a future post) and Inchoate Offences.

Following up on a point made by commenter “Les” in his comment on the SCA, I argue that the inchoate offences represent a threat to freedom of speech. Under Part 2 of the SCA, it is an offence to do an act capable of encouraging or assisting an offence where:

  • you believe the offence will occur, and
  • you believe your act will encourage or assist the offence.

Note that the encouraged/assisted offence need not actually occur. It is a defence however to prove that your act was reasonable.

Anyone who praises someone for planning unauthorised demonstrations within 1km of Parliament is encouraging the commission of an offence!

Anyone who publicises details of an upcoming unauthorised demonstration in Parliament Square would also be assisting the commission of an offence by giving out information that will help people join in the unauthorised demonstration!

For more detail on this argument, see the discussion in the briefing document.

The Serious Crime Act 2007

Posted by James Hammerton @ 9:53 pm on 5 November, 2007.
Categories political liberties, democracy and the rule of law, British politics.
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Last week, the Serious Crime Bill gained Royal Assent to become the Serious Crime Act 2007.

Spy blog comments on this development:

We are especially worried about the effect of the inchoate offences on potential Government whistleblowers, and on bloggers and journalists, because of the listing of the Official Secrets Act and the Terrorism Act 2006 as relevant Acts under the Serious Crime Act 2007.

The supposed defence of “reasonableness”, means that, yet again, the burden of proof is reversed i.e. you as a defendant have to prove that your actions were somehow reasonable, rather than the prosecution having to prove the opposite, which runs counter to the normal way in which English justice works.

The dilemma which law abiding people who publish “dual use” technical information now face is similar to the issues about the amended Computer Misuse Act and dual hacking / security audit tools .

If you publish some information on a website, such as our Hints and tips for whistleblowers guide, which lists some legal technical tactics and techniques for preserving your or your sources anonymity, can you honestly say that they might not, at some time, some where, be abused by someone with criminal intent ?

Are such publishers then at risk of being arrested (and given the severity of the possible penalties, that means the whole panoply of legal harassment through DNA sampling, fingerprinting, photography, retention of data until your 100th birthday, seizure of computer equipment, communications traffic data and interception etc.) for “encouraging or assisting” ?

If you welcome information from Government whistleblowers, does that put you at risk of arrest for “encouraging or assiting” a possible offence under the Official Secrets Act ?

This could have a chilling effect on free speech and on political debate in the UK.

See also, Spy blog’s original comments on the bill made back in January 2007.

I intend to examine this legislation in more detail over a series of posts, as I build up a new briefing document on it.

Yesterday…

Posted by James Hammerton @ 10:41 pm on 1 November, 2007.
Categories British politics, Humour.
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…the Queen met Darth Vader King Abdullah of Saudi Arabia.

[Someone should get a medal for that choice of background music…]

Gordon Brown and civil liberties

Last week, at the University of Westminster, Gordon Brown gave us a speech on liberty and what it means for Britain. I have responded to this speech below. Quotations from the speech are indented.

Addressing these issues is a challenge for all who believe in liberty, regardless of political party. Men and women are Conservative or Labour, Liberal Democrat or of some other party - or of no political allegiance. But we are first of all citizens of our country with a shared history and a common destiny.

And I believe that together we can chart a better way forward. In particular, I believe that by applying our enduring ideals to new challenges we can start immediately to make changes in our constitution and laws to safeguard and extend the liberties of our citizens:

* respecting and extending freedom of assembly, new rights for the public expression of dissent;
* respecting freedom to organise and petition, new freedoms that guarantee the independence of non-governmental organisations;
* respecting freedoms for our press, the removal of barriers to investigative journalism;
* respecting the public right to know, new rights to access public information where previously it has been withheld;
* respecting privacy in the home, new rights against arbitrary intrusion;
* in a world of new technology, new rights to protect your private information;
* and respecting the need for freedom from arbitrary treatment, new provision for independent judicial scrutiny and open parliamentary oversight.

Note here how Mr Brown is talking about giving us “new” rights to express dissent, “new” protections of privacy and “new” rights against arbitrary intrusion. The main reason we need “new” protections is precisely because this government has trashed many of the old ones!

(more…)

School uses RFID chips in uniforms to track pupils

Posted by James Hammerton @ 9:21 pm on 22 October, 2007.
Categories privacy and surveillance, British politics, the database state.
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A school in Doncaster seems willing to introduce its pupils to a world where all their movements are tracked. From the Register (again!):

A school in Doncaster is piloting a monitoring system designed to keep tabs on pupils by tracking radio chips in their uniforms.

According to the Doncaster Free Press, Hungerhill School is testing RFID tracking and data collection on 10 pupils within the school. It’s been developed by local company Darnbro Ltd, which says it is ready to launch the product into the £300m school uniform market.

IPS produces shortlist of ID scheme suppliers

A significant milestone has been reached on the British National Identity Scheme. The Register reports that the Identity and Passport Service has now produced a shortlist of 8 companies who will compete for work in implementing the National Identity Scheme. The companies are:

  • Accenture,
  • BAE Systems,
  • CSC,
  • EDS,
  • Fujitsu,
  • IBM,
  • Steria, and
  • Thales

It seems a change of government will definitely be required to scrap this scheme.

ACPO and Home Office propose integrated CCTV network

The Register has an article covering the National CCTV Strategy, a report jointly published by the Home Office and the Association of Chief Police Officers.

After complaining about issues ranging from poor quality of some images, through to the fact that most CCTV systems are privately owned and the police have to have access to the premisses to even establish if CCTV evidence is available from the cameras, the report goes on to propose that all CCTV systems be registered, and eventually, that both live and archived CCTV footage is available via a network, so that people/vehicles can be tracked automatically. The Register states (italics indicate quotations from the report):

This is actually worse than what Jason Bourne has to put up with, as the spooks would one day have no need to know where he was to start following him on camera. Rather, the second he drove the wrong car, used the wrong credit card - or maybe even just took down the top of his hoodie - ding! Nearby cams would swivel round and he would be followed in real time until the cold steel bracelets snapped shut on his wrists.

Honest, that’s the plan:

In future, as technology is developed… such a network will allow the use of automated search techniques (i.e. face recognition) and can be integrated with other systems such as ANPR, and police despatch systems… [there might also be links of] transport system cameras to travel cards [and] shop cameras to Electronic Point of Sale (EPOS) systems… actions can be triggered by associated events and post event CCTV images can be quickly searched against other events/data…

Even the report’s authors note that people might be worried by this.

“Integrated systems significantly increase the capacity to undertake public surveillance,” they say, “and therefore needs to be carefully controlled by Information and Surveillance Commissioners’ guidance…”

Very few of us are in favour of truck bombs in London. The trouble is, this kind of kit - being so much cheaper and easier to access than surveillance teams, aircraft, fortified watchtowers etc. - can, and probably will, get used for many other purposes. The report admits as much.

In addition to the police, there are many other uses and users of CCTV, such as… insurance companies and solicitors… local authority officers… highways enforcement officers, dog wardens, health safety and licensing …

So, potentially your insurers, solicitors acting for your enemies, every petty official in the land, even the bloody dog warden can watch and track you. Unless of course you’re the kind of person who deals only in cash, wears his hoodie up at all times and mainly drives stolen, uninsured or unregistered cars.

I.e. yet another big-brother proposal that the Stasi would have been proud of.

Freedom of speech roundup

Back in catch-up mode, this time a selection of stories regarding freedom of speech:

  • Organise a petition, face a trial!

    Peter Black AM, highlights the case of Swansea businessman Carl Lewis, who organised a petition to oppose a proposed traveller’s site in Swansea during a by-election campaign where he was standing as an independent candidate for Swansea council. The CRE has instructed lawyers to take action against Mr Lewis under Section 31 of the Race Relations Act which apparently makes it unlawful to bring pressure on someone to act in a discriminatory way, an extremely vague law which looks like a “catch-all” clause to me. Peter Black highlights just how disturbing this development is:

    Whatever one’s views on this matter, the prosecution of local residents who are using legitimate and democratic means to bring their concerns to the attention of the local Council, will set a dangerous and unwelcome precedent. If for example the Council were to proceed with an official site and lodged a planning application would the CRE determine that anybody who objected to it, and any Councillor who spoke against it, were acting in breach of the Race Relations Act?

    There are fundamental freedom of speech issues here that are not helped by the CRE’s own inconsistency. They are not for example prosecuting the Labour Party, who put out a leaflet in the by-election calling on people to vote for them so as to get rid of the gypsy site. Nor are they prosecuting the BNP who also put out dubious literature during the recent by-election.

    Note that the right to raise a petition, as well as being an important component of any remotely democratic society, dates back in English and Welsh law (at least) to the 1689 Bill of Rights:

    That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

  • Yes, I know I’ve been very slow on the uptake on the Alisher Usmanov story. For those not in the know, basically, Mr Usmanov didn’t like what some bloggers were writing about him, and instructed his lawyers to get the material removed resulting in a whole swathe of websites, many of which had not published any of the offending material, being shut down. End result, lots of bloggers have taken an interest in the story and rallied round, resulting in the material getting an even wider viewing than it would have done had no one made a fuss. See Chicken Yoghurt and Spy Blog for some summaries, plus check here and here for the offending material itself. Note that Craig Murray (one of the censored bloggers) has material critical of Usmanov in his book without facing any libel charges. Finally Mr. Eugenides sums up the problem succinctly:

    And let’s be clear on this point; these blogs are down not because Usmanov has been libelled, but because he says he’s been libelled, and has a room full of paid monkeys sitting at typewriters firing off theatening letters to that effect.

    I don’t give a shit about this character, or Arsenal FC (no offence to any Gooners out there); nor do I share all or even most of Tim Ireland or Craig Murray’s politics. But that’s far from the point. If you can be silenced for calling a businessman a crook, then you can be silenced for calling a politician a crook, too. Then it’s everyone’s problem.

    Most recently, Indymedia have also been threatened by Usmanov/Schillings and Bloggerheads, one of the affected blogs, is keeping up with the affair here.

  • Shortly after he took over as PM,I covered reports that Gordon Brown might lift the exclusion zone against protesting within 1km of Parliament, after he’d made a speech where he’d talked about safeguarding and enhancing civil liberties. I’m not aware of the exclusion zone having been lifted yet, over 4 months into Gordon Brown’s Prime Ministership. Moreover, the police were recently refusing to allow a march organised by Stop the War to pass within 1 mile of Parliament and even claimed that no marches were allowed whilst Parliament was sitting, but eventually the march went ahead, though this may have been because of the high-profile of one of the marchers. At any rate, it looks like the police were trying to restrict this march but backed down due to the fuss, and there’s still no sign of the exclusion zone being lifted.
  • What did this man do to deserve being tasered?!.
  • Reuters reports that the EU has plans to try and block every website that posts bomb making instructions. In fact it’s worse than it sounds (surely any site on the chemistry of unstable compounds could be deemed to be “bomb-making” instructions?!), from the Reuters report:

    Internet searches for bomb-making instructions should be blocked across the European Union, the bloc’s top security official said on Monday.

    Internet providers should also prevent access to any site giving instructions on how to make a bomb, EU Justice and Security Commissioner Franco Frattini said in an interview.

    “I do intend to carry out a clear exploring exercise with the private sector … on how it is possible to use technology to prevent people from using or searching dangerous words like bomb, kill, genocide or terrorism,” Frattini told Reuters. (emphasis added)

    This is crazy. The man wants to actually stop people using certain words in their articles or in search engines! Note that the Reuters report itself would fall foul of the ambitions attribute to Mr. Frattini here.

    The Register reports a more recent speech by Mr. Frattini that mentions plans to make it an offence to post bomb-making recipes on the internet. This speech makes no mention of the blocking of websites that uses certain words, but we’ll probably have to wait until the formal proposals come forward before we see what is actually in the pipeline.

  • Apparently, writing an email like this, got the American author suspended from his University course and told he would have to undergo a compulsory mental health evaluation if he was to be allowed to return.
  • The Racial and Religious Hatred Act 2006 was brought into force at the beginning of October. This Act made it an offence to incite religious hatred, where to fall foul of the law you’d need to use “threatening” language or behaviour and the prosecution would have to prove intent to foment hatred.

    The problem here is not so much the precise definition of the offence, or even the possibility of someone being jailed when they criticise a religion, but rather it is the likely effect it will have on people prior to the point at which legal proceedings might be instigated, as the Pub Philosopher explains in an article posted after the bill passed:

    People will register that the law has been passed and that there are now penalties for saying nasty things about Islam. Most will not read the small print and will decide that it is simply safer to keep quiet. Managers, unsure of the law, will flinch in the face of demands and accusations from Muslim staff who decide to test the limits of their new legal rights. Expect to see more cases like the ridiculous ban on pig toys in Dudley.

    Even in its modified form, the Religious Hatred Bill will close down debate about religion and will restrict free speech. Last night’s government defeat may have preserved some of our legal freedom to criticise religions but the new law will create an atmosphere in which fewer people are prepared to take the risk.

    For example, could a protest in which placards of the Danish cartoons were being waved be construed as “threatening” behaviour? What if some militant (and thus vocal) Muslims claimed they felt threatened by such a protest, finding it intimidating?

  • Finally, it appears that British diplomats may face a life-time gag preventing them writing articles or letters drawing on the expertise they gather during their careers, even in retirement. As Brian Barder explains in the Telegraph:

    Official secrets are protected by the Official Secrets Act, which rightly binds officials for life, both as government employees and after retirement.
    advertisement

    The new rules go much further, banning any unauthorised expression of opinion not just by serving officers but also by retired diplomats for the rest of their lives, if such an expression “draws on, or appears to draw on, official information or experience gained in the course of official duties”.

    This applies even if no breach of secrets is involved.

    Had this been in force a few years ago, it could have prevented publication of the ground-breaking letter of 52 former ambassadors and other senior ex-diplomats constructively criticising the Government’s Middle East policies.

    It would prevent ex-diplomats with unrivalled experience “gained in the course of their official duties” from writing articles or letters to the newspapers or giving media interviews on controversial foreign policy issues such as Iraq.

    It would have closed down several stimulating and informative blogs and pre-empted many diplomatic memoirs.

    Baroness Pauline Neville-Jones, formerly a senior diplomat, would presumably have been prevented from serving as the Conservative spokesperson on security in the Lords. (emphasis added)

The Elected Representatives (Prohibition of Deception) Bill

Posted by James Hammerton @ 8:44 pm on 18 October, 2007.
Categories democracy and the rule of law, British politics, accountability.
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A private member’s bill just published makes it an offence for Britain’s elected representatives to make statements they know to be “false, misleading or deceptive in a material particular”. Such a bill might help to restore trust in politics, but as a private member’s bill, it is not likely to get very far.

More details at my personal blog.

Privacy and surveillance roundup

Continuing in catch-up mode, here’s a round-up of recent privacy and surveillance related stories:

  • Back in July, it was reported that the LTI 20.20, the police’s favourite speed gun, can lie. Amongst it’s many feats, were a recording a bicycle 66mph, a parked car doing 22 mph and a brick wall doing 40mph…
  • [Hat Tip: IanPP]Highlighting just how leaky public bodies can be when it comes to personal data, ZDNet reported in September that an inquiry was being held to find out how a hard drive containing NHS patient data ended up being sold on eBay.
  • The UK’s DNA database currently holds the samples of those who have been investigated of crime, whether they’re charged or cleared or not. This has led to some sections of society being disproportionately represented in the DNA database. Lord Justice Sedley thinks this is unfair. His solution? Every UK resident, plus all visitors to the UK, should be required to have their DNA put on the database. Surely the unfairness would be reduced if only those actually convicted of crime had their DNA permanently stored?
  • The Daily Mail reports that, as of 1st October, all phone companies are required to store information about which people you phone, how long for, from which numbers and in the case of mobile phones, from which location for a minimum of a year. Access to this information must be provided to some 795 public bodies ranging from your local council, the tax authorities and government deparments through to the Food Standards Agency, the Immigration Service and the Charities Commission. This is all down to Statutory Instrument 2199, implementing the European Union’s Data Retention directive. Trevor Mendham comments on this proposal at this blog. Note that in 2009 the plan is for information about your internet communications to be subject to a similar regime, i.e. storing who you email, who emails you, which websites you visit, who visits your website, etc.
  • Part III of the Regulation of Investigatory Powers Act 2000 (RIP Act) was finally brought into force, starting on the 1st October, via this Statutory Instrument. The significance of this is that it means that the police can demand that you provide the encryption key to encrypted data found in your possession, under section 51 of the RIP Act. Note that if you ever knew/had the key to the encrypted data you are presumed to still know/have the key subsequently. Bruce Schneier comments on this policy here. The Strange Stuff blog has created an article which, if you read it on your computer, could lead you to falling foul of this law… How are you going to prove you don’t have the key?
  • The Telegraph reports that scientists have developed a method of tracking people on CCTV that can take account changes such as removing jackets or changing appearance:

    The new system plugs the surveillance gap by enabling an operator to choose a suspect and follow him through dense crowds, and any subsequent changes in appearance.

    It works by attaching about 30 “tags” on small clusters of pixels on the footage, fixing them on different parts of the subject. It then “locks on” to these tags, and as the subject is filmed, the computer is able to follow his or her exact progress on the film, as the target moves about.

    The system has been developed by scientists at the defence company BAE Systems, the University of Reading and Sagem, a French telecoms company.

    Andrew Cooke, the project manager, said: “This kind of technology would allow us to track someone like Bourne.”

    Present CCTV surveillance “hits a brick wall” when a suspect mingles in a crowd or even takes off his jacket. The new system will even be able to pass information from one CCTV camera to another and can be programmed to pick out potential criminals by detecting suspicious body language.

  • The Home Office is currently running a trial of a scheme for fingerprinting airline passengers as they enter the UK at Gatwick Airport, ostensibly as a means of preventing illegal immigration. Such a scheme entails recording every air passenger’s visits to the UK, and is thus yet another form of mass surveillance.
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