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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


Jacqui Smith on the Snooper’s Database

Posted by James Hammerton @ 7:59 pm on 19 October, 2008.
Categories privacy and surveillance, British politics, the database state.
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British Home Secretary Jacqui Smith recently gave a speech to the IPPR, where she made (admittedly indirect) reference to the plans to record all communications data, i.e. data about who you phone, who you email, which websites you download material from, but not the content of such transactions, in a central database.

I shall focus here solely on the part of the speech dealing with communications data:

Our ability to intercept communications and obtain communications data is vital to fighting terrorism and combating serious crime, including child sex abuse, murder and drugs trafficking. Communications Data – that is, data about calls, such as the location and identity of the caller, not the content of the calls themselves – is used as important evidence in 95% of serious crime cases and in almost all Security Service operations since 2004.

But the communications revolution has been rapid in this country and the way in which we intercept communications and collect communications data needs to change too. If it does not we will lose this vital capability that we currently have and that we all take for granted. [For example, in the Soham murders and 21/7 convictions.]

All this is a reflection of the technological and behavioural changes that the growth of the internet brings. Once again, that is not a Government policy which is somehow optional. It is a reality to which Government needs to respond.

The changes we need to make may require legislation. The safeguards we will want to put in place certainly will. And we may need legislation to test what a solution will look like.

So far, one needs to be remember several things at this stage and consider these comments in context:

  • Phone and internet companies already record communications data, that is data about the origin, location, destination and length of phone calls, emails, text messages, downloads and website visits. The government can demand this data, and has granted the power to demand the data not only to the police and security services but to local councils, government departments and numerous government bodies. In most cases, they can demand this data without a warrant.
  • The government has pushed, at EU level, for phone and internet companies to be required to store this data for at least a year.
  • The EU data retention directive already requires phone companies to store the data related to phone calls for at least a year, and will soon require internet companies to store the data related to emails, downloads and website visits too.
  • The government is proposing (though this is not directly mentioned in the speech), to store all this data in one central database for its own purposes.

It seems to me that the government and security agencies can keep on top of the terrorist threat quite adequately as it stands now with the current arrangements. Moreover it is still a targetted approach in that they have to ask for the data related to those they suspect of being up to no good, whereas if a central database is created, then they have the data relating to everyone.

This changes the nature of what is going on and thus becomes mass indiscriminate surveillance. It also enables the data to be stored for whatever length of time the government chooses, using tax payer’s money to bear the costs of doing so, where extending the length of time for such data retention by the phone and internet providers would impose a burden on those businesses. It gives the government a lot more freedom of action over exactly how much data is retained for how long and over how it will be used.

I do not trust this or future governments to refrain from using such data for fishing expeditions or worse. I do not trust this or future governments to secure this data against being stolen by foreign spy agencies, organised crime, terrorists or corrupt government officials. The database will be a honeypot for such organisations wishing to subvert the institutions of the state, including institutions such as GCHQ, MI5 or MI6. For some reason, Jacqui failed to mention these risks.

But before proceeding to legislation, I am clear that we need to consult widely with the public and all interested parties to set out the emerging problem, the important capability gaps that we need to address and to look at the possible solutions. We also need to agree what safeguards will be needed, in addition to the many we have in place already, to provide a solid legal framework which protects civil liberties.

This consultation will begin in the New Year and I want this to be combined with a well-informed debate characterised by openness, rather than mere opinion, by reason and reasonableness. In this, as in the other work we do, my aim is to achieve a consensus and I hope that others will approach the serious issues posed for our national security capabilities in the same spirit.

If this government genuinely approaches this in a spirit of openness and reasonableness, it’ll be a first. They have lied and obfsucated repeatedly over issues such as identity cards and pre-charge detention, it’ll mark a considerable change of habit to do otherwise now…

So let me set the terms for that open and reasoned debate now, and be clear on what we are not going to do.

There are no plans for an enormous database which will contain the content of your emails, the texts that you send or the chats you have on the phone or online. Nor are we going to give local authorities the power to trawl through such a database in the interest of investigating lower level criminality under the spurious cover of counter terrorist legislation. (emphasis added)

And here we have the classic, “attack a straw man” tactic designed to distract attention from what they are planning to do. I’m not aware that anyone has claimed the government want to store a database of the content of all phone calls, emails, etc. The media coverage I’ve seen has been clear that the database would store only the communications data, not the content of the communications themselves.

And note the promise being made with regards to local authorities. Smith is saying that they will not be allowed to trawl a database of the content of your communications.

She is not saying that they won’t be allowed to trawl a database that records who it is you are communicating with.

Local authorities do not have the power to listen to your calls now and they never will in future. You would rightly object to proposals of this kind and I would not consider them. What we will be proposing will be options which follow the key principles which govern all our work in this area – the principles of proportionality and necessity.

So she reiterates that the government won’t do something nobody is claiming they are doing anyway.

And that’s all she’s said on the matter in this speech.

Thus she has in fact dodged the issue.

Proposal to require passports to buy mobile phones

According to both Scotland on Sunday and the Times, the British government is considering requiring people to present their passports, or other official ID, when buying mobile phones. From the Times’ article:

A compulsory national register for the owners of all 72m mobile phones in Britain would be part of a much bigger database to combat terrorism and crime. Whitehall officials have raised the idea of a register containing the names and addresses of everyone who buys a phone in recent talks with Vodafone and other telephone companies, insiders say.

The move is targeted at monitoring the owners of Britain’s estimated 40m prepaid mobile phones. They can be purchased with cash by customers who do not wish to give their names, addresses or credit card details.

The pay-as-you-go phones are popular with criminals and terrorists because their anonymity shields their activities from the authorities. But they are also used by thousands of law-abiding citizens who wish to communicate in private.

The move aims to close a loophole in plans being drawn up by GCHQ, the government’s eavesdropping centre in Cheltenham, to create a huge database to monitor and store the internet browsing habits, e-mail and telephone records of everyone in Britain.

The “Big Brother” database would have limited value to police and MI5 if it did not store details of the ownership of more than half the mobile phones in the country.

So this seems to be a knock-on effect of the plans to introduce the snooper’s database of the origin, the location, the destination and the length of phone calls, emails and website visits in the UK.

However as an anti-crime/anti-terrorism measure it seems rather ineffective to me. Surely anyone wishing to circumvent this requirement merely has to do one of the following:

  • Steal a mobile phone.
  • Obtain a mobile phone second hand in a private transaction.
  • Forge ID documents with which to buy phones.
  • Obtain a phone from abroad.
  • Learn how to alter a phone’s identity.

Making any or all of these illegal is hardly going to stop people already intent breaking the law from doing these things. Meanwhile the law abiding public get subjected to ever greater levels of surveillance. Perhaps that’s the point.

Is “42 days” dead?

Posted by James Hammerton @ 7:49 pm on 18 October, 2008.
Categories democracy and the rule of law, British politics.
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After being defeated heavily in the House of Lords on the issue, the British government has dropped plans to allow suspected terrorists to be held for upto 42 days without charge from the Counter Terrorism Bill (CT Bill).

This means that they won’t try to use the Parliament Act to force the bill through without the Lords’ consent, thus in the normal course of events, the issue won’t be raised again this side of the next general election, where the Tories, pledged to repeal the measure if it had passed, look likely to win. However, they haven’t quite conceded defeat either. Instead of including the measure in the CT Bill, they have decided to publish a bill that will implement 42 days to be used in a terrorist emergency.

It seems clear the government would still like to put this measure on the books, but have simply bent to the political reality that opposition is such that the measure is unlikely to get through Parliament this side of the next election and the government does not wish to be bogged down by the issue in the run up to the election. The only situation they can therefore realistically hope to use to put the measure on the books until then is the aftermath of a terrorist attack, when feelings will be running high and opposing such a measure would allow the government to cast the opposition as being “soft” on terrorism. Yet, if there really was a serious “terrorist emergency” (as opposed to simply another of the attacks or attempts Britain has experienced so far from Islamist extremists), they already have the option of using the Civil Contingencies Act to do whatever they feel needs to be done. This fact shows that they’re simply trying to save face and that the prime purpose of such legislation would not in fact be to combat the threat of terrorism but to make the opposition look soft on terrorism. Indeed Jacqui Smith’s statement after the defeat of the bill pretty much accuses those opposing the measure of exactly that:

In a forceful statement to MPs less than two hours after the vote, Ms Smith said: “I deeply regret that some have been prepared to ignore the terrorist threat, for fear of taking a tough but necessary decision.”

She said she had prepared a new bill which would allow the director of public prosecutions to apply to the courts to question a terrorist suspect for up to 42 days “should the worst happen”.

She said Britain still needed to “be prepared to deal with the worst”, adding: “My priority remains the protection of the British people.

“I don’t believe as some honourable members clearly do that it’s enough to simply cross our fingers and hope for the best. That is not good enough.”

Thing is, no one who opposes the bill suggests we should cross our fingers and hope for the best. The key to combatting the terrorist threat lies not in ramming ever more draconian legislation through Parliament, but in gathering intelligence and providing the resources, technology and manpower necessary to ensure thorough and timely investigation of terrorists and their crimes. This government seems to think that if a evidence cannot be found in time to charge someone arrested for terrorism, that they must extend the time with which that suspect is held rather than consider the possibility that the reason the evidence cannot be found is either that they’re innocent or that there’s a lack of resources or a lack of competence in the investigation.

And yet, it seems to me the measure won’t be dead whilst there is life in the idea that someone who opposes a law ostensibly targetted at fighting terrorism is “soft” on terrorism. This idea has enabled the government to pass ever more draconian measures over the last decade. With 42 days, it may have received some wounds, but the fact the government can still produce a bill for emergency use, and make statements like the above when a measure they want is defeated, shows there’s still some life in it.

Moreover I fully expect the measure to be included in Labour’s next general election manifesto. The government hasn’t admitted they’re wrong, they’ve simply decided to accept the battle is lost at this point but they still clearly hope to use the issue to their advantage later on. In the run up to the election, I fully expect them to attack the Tories and the Lib Dems for being soft on terrorism for opposing these measures. Nailing the lie that opposing attacks on civil liberties means being soft on crime or soft on terrorism will thus be the key to ensuring that whoever wins the next general election stops using draconian legislation as a stick to beat the opposition with.

On Hoon’s defence of the Snooper’s Database

Posted by James Hammerton @ 11:50 pm on 17 October, 2008.
Categories privacy and surveillance, British politics, the database state.
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Update: The edition of Question Time concerned is up online at the BBC, the discussion of the proposal starts after 48 minutes, 20 seconds in.

On Question Time on the 16th October, Geoff Hoon defended the plans to create a centralised database to store the details of who you phone, who you email, the location of your mobile whilst switched on, what web sites you visit and everyone you send text messages to:

On BBC One’s Question Time, Mr Hoon said the plans would only extend powers that already exist for ordinary telephone calls, to cover data and information “going across the internet”.

He said the police and security services needed the powers to deal with “terrorists or criminals” using telephones connected to the internet, for “perfectly proper reasons, to protect our society”.

But the Lib Dems’ communities spokeswoman Julia Goldsworthy said it sounded like “something I would expect to read in [George Orwell’s book] 1984″ and questioned whether the government and councils could be trusted not to misuse the powers.

She asked: “How much more control can they have? How far is he prepared to go to undermine civil liberties?”

Mr Hoon interjected: “To stop terrorists killing people in our society, quite a long way actually.

“If they are going to use the internet to communicate with each other and we don’t have the power to deal with that, then you are giving a licence to terrorists to kill people.”


He added: “The biggest civil liberty of all is not to be killed by a terrorist.”

It’s worth watching the video clip at the link above, to get some extra context, but the quotations seem accurate to me.

The “argument” Hoon is making is ridiculous for several reasons:

  • Terrorists, and other organised crims, could easily circumvent the measures being proposed here by simply not using the internet or phones to communicate, or by using and frequently changing unregistered PAYG phones and anonymous internet accounts. If they realise that the government will store the communications data of every electronic communication going through British systems, they’ll naturally take this fact on board and act to circumvent it. It is only likely to capture the less technologically aware or intelligent crims. That seems a poor return for everyone surrendering much of their right to privacy in their electronic communications.
  • The government already requires phone companies to retain the data concerned regarding phone calls for at least a year and will soon be requiring ISPs to retain the data regarding internet usage as well. This means they can already obtain the data for anyone they are suspicious of by demanding it from the ISPs and phone companies. They’ve given this power to local councils and numerous quangoes, not just the police and security services. I doubt creating a central database will make much difference, in terms of fighting terrorism, other than to allow random trawls of anyone’s data regardless of any suspicion. However it will make a huge difference if you wish to track the communications of the general public, or subsections such as political activists, politicians, union organisers, journalists, etc.
  • Terrorists may communicate and plan attacks by visiting each other in the privacy of their own homes. If we apply Hoon’s logic regarding the use of electronic communications to this situation, then it means we must put surveillance into every room of every building in Britain or be accused giving them a licence to kill. This is an absurd argument whether applied to the privacy of our electronic communications or the right to privacy in our own homes.
  • It seems to me that whether one dies from a terrorist bomb, a knifing, being shot or being poisoned, one is just as dead on one case as in the others so why we should single out “not being killed in a terrorist attack” as the biggest civil liberty of all is not clear. Surely it’s just as serious a violation of an individual’s civil liberties to be shot dead by the police whilst commuting on the Tube? Or to be murdered by a mugger?

Hoon’s argument here is emotive tosh that fails to take into account the impact on freedom of living under constant surveillance by the state, regardless of whether you’re a suspect or not, an impact that will be felt by everyone living in Britain if proposals like this go ahead, not merely those suspected of crime or those unlucky enough to die in a terrorist attack.

History has shown that giving governments the power to perform mass indiscriminate surveillance of the general population (as opposed to targetted surveillance against those suspected of being up to no good) leads to those governments representing a far greater threat to liberty than the terrorists Hoon worries about.

Even without a malevolent government taking power, these proposals would give huge power to anyone who gains access to it, legitimately or otherwise.

Does Hoon not realise that this proposal will create a huge honeypot for terrorists, other spy agencies, organised criminals, etc to attack, knowing that they could get useful information about who anyone they’re interested in communicates with (e.g. people working for GCHQ, the police, MI5, MI6, the government, public bodies or other organisations they wish to subvert)?

At the moment, they’d have to go to multiple organisations, subvert them and collate the data together. The government proposes to put it all in one place, thus making the job easier!

The British government’s record on securing the data it holds on us is abysmal, and even the Ministry of Defence continually loses laptops, CDs and memory sticks holding sensitive data. Why on earth would we trust them to do any better with this database?

Round up on the Snooper’s Database

Readers wishing to understand the ins and outs of the snooper’s database, may find the following articles useful:

What Britain’s snooper’s database will entail

The British government is proposing to set up a central database of communications data in Britain that will store details of who you phone, what websites you visit, who visits your website, who you email, who you send text messages to and the location of your mobile whilst switched on (and possibly more?) for 2 years.

In a letter to the Herald, Dr Geraint Bevan, the NO2ID Scotland coordinator, has provided an eloquent and succinct description of the impact such a database would have on us:

If the Home Secretary has her way, no longer would we be free to consult online medical sites without the government retaining a permanent record of our health concerns. No longer would it be possible to participate in democracy electronically without the government knowing with whom we are engaging, and when. No longer would it be possible for citizens and whistle-blowers to converse electronically with journalists free of interference from the state. No longer would we be free to download pornography without state stalkers knowing our sexual interests. No longer could we send romantic messages to lovers free from the overbearing presence of continual state surveillance.

This snooper’s database must be stopped.

On the consequences of the European Arrest Warrant

Update: In the original version of this article, I wrote that the European Arrest Warrant allows for extradition to take place if the offence is punishable by 1 year or more in prison in the country requesting extradition. This is only true if the offence exists in both jurisdictions, i.e. if dual criminality applies. As section 64(2) of the Extradition Act 2003 makes clear, extradition where there is no dual criminality requires the offence to be punishable by 3 years or more in prison. I have altered the article to correct this. Apologies for the mistake.

On the 1st October, Dr Frederick Toben, an Australian citizen, landed at Heathrow Airport whilst on a journey from America to Dubai.

He did not complete that journey.

Instead, he was arrested via a European Arrest Warrant, on a charge of ‘holocaust denial’, at the behest of the German government.

I strongly disagree with this man’s views, but he has as much right to express his views as I do. I am opposed to making holocaust denial an offence for the simple reason that it is contrary to freedom of expression. I also think it is wrong to prevent people, by law, from expressing scepticism or doubt about the generally accepted accounts of an historical events, since there is no guarantee that those accounts have managed to capture all the evidence surrounding those events or evaluate it fully and objectively. The best guarantee one can have is to allow people to make their arguments and to test each other’s arguments. Outlawing the expression of points of view that are in opposition to an officially accepted view means you hinder further advances in knowledge about the subject matter, not because the outlawed points of view are correct but because the debates and challenges that arise from allowing them to be expressed may lead to new insights or new evidence being discovered. Making an official point of view sacrosant turns history into dogma.

But this case is not merely about freedom of speech, or freedom of historical enquiry. It is also about the rule of law, and there are no British laws against holocaust denial.

So why has Toben been arrested? Because:

  • Toben runs a website that denies the holocaust happened.
  • Britain signed up to the European Arrest Warrant (EAW), which allows for fast-track extradition between EU states without any evidence being presented to the courts of the country performing the extradition and where there is no requirement that the conduct be an offence in both countries. The conduct needs only to be an offence in the country requesting extradition, so long as the offence falls into one of a broadly defined set of categories, and is punishable by 3 years or more in prison; Toben is apparently facing upto 5 years in a German prison.
  • With the internet, many countries, Britain included, are applying the principle that once someone downloads material in a particular jurisdiction (e.g. by reading a web page with their browser), that material has been published in that jurisdiction. Germany will therefore be claiming that Toben’s website has been published in Germany, even though he runs it from Australia, where there are also no laws making holocaust denial an offence, and thus that Toben committed an offence falling under the “Racism and Xenophobia” category that enabled them to request extradition under the EAW in the first place.

If Toben is extradited, then it will confirm that anyone (who is accused of) publishing, on the internet, any articles questioning the holocaust could be extradited to Germany from any other EU country without their local courts even getting a chance to see any evidence against them, regardless of whether their internet publications were legal in their own country or the country where the website is run from.

More generally, it means that one’s internet publications are effectively subject to the union of all the laws applying in the EU, where the offence is punishable by 3 or more years in prison, and which fall under the “Racism and Xenophobia” banner or any of the other 31 categories (e.g. “computer-related crime”), and you could be extradited to any other EU state on the accusation that your publication violated those laws. Anyone living in or travelling through any EU country can potentially be targetted with this legislation.

Open Rights Group/NO2ID photocall: Capturing the database state

The Open Rights Group is asking people to submit photos that embody “the database state, and the UK’s world-famous surveillance society”. Together with NO2ID, they will use the photos to create a live collage that will be shown in Parliament Square on the 11th October:

…we’ll gather underneath the statue of Winston Churchill on Parliament Square in London to build an image showing where the incremental invasions of our privacy you’ve been documenting will eventually lead British society. We need ten or so people to help, so if you’d like to offer a hand, email info [AT] and let us know.

Note that the 11th October is the day of action selected for the “Freedom not fear” campaign.

Amnesty International’s petition against “42 days”

Posted by James Hammerton @ 12:16 pm on .
Categories democracy and the rule of law, British politics.
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[Hat tip: UK Liberty]

Amnesty International have launched an online petition against the British government’s proposals to allow people to be detained for up to 42 days without charge if they’re suspected of terrorism. At the time of writing, it has 2856 signatures.

Meanwhile, The Times is reporting that the government have decided not to use the Parliament Act should the 42 days proposal be defeated in the House of Lords. The Counter Terrorism Bill returns to the Lords later this week.


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