Author Of UK's Terrorism Act Says It Was Never Meant For Situations Like David Miranda

from the too-late-now dept

Tue, Aug 27th 2013 5:26am — Mike Masnick

In the US, we've had one of the key authors of the Patriot Act, Jim Sensenbrenner, speak out strongly, saying that the NSA interpretation of the law appears to be completely different than what was meant when the bill was written. It looks like something similar may be happening in the UK. Charles Falconer, who helped craft the UK's Terrorism Act, which was used to detain David Miranda and swipe all of his electronics, has now spoken out, saying that it was an illegal use of the Act he wrote.

...schedule 7 powers can only be used "for the purpose of determining" whether the detained person is a terrorist. The use of the power to detain and question someone who the examining officer knows is not a terrorist is plainly not for this purpose, so it would neither be within the spirit nor the letter of the law.

There is no suggestion that Miranda is a terrorist, or that his detention and questioning at Heathrow was for any other reason than his involvement in his partner Glenn Greenwald's reporting of the Edward Snowden story. The state has not even hinted there is a justification beyond that involvement.

He also hits back, pretty strongly, against the suggestion by some, including home secretary Theresa May, that the "terrorism" connection was that the content might fall into the hands of terrorists. But Falconer claims that this doesn't make any sense:

It is important to understand the ramifications of May's justification. She is not suggesting there is an issue about whether Miranda is a terrorist – the only lawful basis on which his detention and questioning could be justified. Rather, she is suggesting that he was in possession of stolen material which could help terrorism, presumably by publication. There is a world of difference between the two.

Had schedule 7 been in force when Salman Rushdie was writing Satanic Verses, May's justification would have allowed his detention and questioning and the removal of his manuscript.

Using very loose, and obviously ridiculous, definitions to justify deplorable actions just don't seem like a good idea -- and yet the defenders of these programs continue to do so, seemingly forgetting that the people who put this stuff together in the first place, are still around.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: charles falconer, david miranda, jim sensenbrenner, journalism, patriot act, terrorism act, uk

24 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Guardian, 27 Aug 2013 @ 5:35am

and yet
his law became used such a way..
perhaps we ought to put HIM in prison for a year to make him really think about it....

there is nothing worse then being imprisoned for somehting you didn't do....i know that feeeling personally
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 5:38am

the problem is that regardless of how the law was drafted and how it was intended to be used, the governments and the security agencies totally ignore everything and interpret them how they want to, stretching the wording as well as changing it to suit a circumstance of the moment. even the fact that those who proposed the laws originally are still in office, in government means nothing. once a law has been applied in a way that suits a circumstance, it is used like that whenever needed. the precedent being set seems to let those who used it, wrongly, but how they wanted to then move on to make further changes, again as needed.
Theresa May in the UK is one of those people who will use a law, regardless of how specific or not it's written, in the way she wants. she seems to be so 'in tune' with the NSA that you could almost think she has been specifically groomed to carry out their desires in the UK. i hope she gets relieved from office in the next election. it looks to me as if she is and will continue to be a very dangerous person and is going to cause a lot of problems for the UK!!
[ link to this | view in thread ]
Killer_Tofu (profile), 27 Aug 2013 @ 5:53am

Anyone else notice?
Anyone else notice that the authors of these laws and acts that are being abused always come out later after the abuses to say "It wasn't intended for this!". Well, maybe they should have listened to the critics who at the time of proposing it were telling them it was open to abuse later on. The internet has raised plenty of concerns on plenty of acts and each time the writers say "Oh, it won't be used that way, just trust us". Then later on the laws are abused to oppress the public.

Anyone else noticing this pattern? And then they want to put in place laws like SOPA and such but don't worry they say, it won't be abused. Ha!
[ link to this | view in thread ]
horse with no name, 27 Aug 2013 @ 6:01am

purpose of laws not important once passed
Mike, you better than anyone should know that laws are passed with one intention, and have opposite effects or are expanded into areas nobody really thought about.

A number of anti-gang measures like enterprise corruption laws have been stretch and expanded and used to cover all sorts of things. That is perhaps the most common stretching of the laws, and it happens in many different countries. The application of the law is beyond it's intention.

DMCA laws are similar in the US. The safe harbors were never intended to create a business models that depend on violating copyright as an ongoing source of content, but it has had that effect. In the same manner, the 512(f) false claim provision wasn't intended to almost unusable (and Lessig will almost certainly fail with it), but it has turned out that way.

In the US, when a law is written, it is not enforced until there has been a publication of the law and it's general application as seen by the agencies in question. The actual application of laws is often nothing like the way they are written, and beyond that the interpretations after court decisions and appeals can be even further from the laws as written.

You act surprised, like you aren't aware of any of this. The application of the terrorism laws to Miranda (unfortunate name, it seems) is a stretch, but within the letter of the law. It's like golf, you play the ball how it lies, not how you wish is was positioned.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 6:03am

Bruce Schneier's take on the detention of David Miranda. It's a long read, but a good one:

http://www.schneier.com/blog/archives/2013/08/detaining_david.html
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 6:05am

GCHQ: Oh nevermind, we just wanted a law that allows us to detain anyone we like. Thank you, mr. Falconer.
[ link to this | view in thread ]
Richard (profile), 27 Aug 2013 @ 6:12am

Tragedy
The tragedy here is that Theresa May was not even supposed to be home secretary - it should have been David Davis - who would have taken a very different line.

Unfortunately he was too principled to hang on to his job in the shadow cabinet until the election.
[ link to this | view in thread ]
Androgynous Cowherd, 27 Aug 2013 @ 6:17am

Extraneous words
The state has not even hinted there is a justification beyond that involvement.

There seem to be a few extraneous words there. It should read:

The state has not even hinted there is a justification.

HTH.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 6:18am

The "spirit nor the letter of the law", won't stop thugs from acting nor being, thuggish.
[ link to this | view in thread ]
Ninja (profile), 27 Aug 2013 @ 6:24am

Oh really? So you have an incredibly broad worded law that's more open to abuses than a hooker and he expects nobody to do so? Really? Basic concept of life: if it has room for abuses it will be abused. That's why laws must be focused very narrowly.

It's amusing and depressing he's shocked that there were abuses...
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 6:49am

I honestly think a lot of these politicians are just criminals of their own good intentions making bad actions.

They can't possibly understand the world we live in, how can they? Senators in this country can't get speeding tickets from speed cams. How can they even care about speed cameras?
They are treated as kings and move around without being impeded. They probably smell their own farts enough thinking that all citizens enjoy their own levels of freedom and that you don't need to be specific with rules or worry about abuse because those abuses will never target them! Who could they possibly target except the bad guys!

Representative governments should be ran by people who actually represent their constituents.
[ link to this | view in thread ]
Dongblebirt The Magnificent, 27 Aug 2013 @ 7:25am

Don't think it actually is an incredibly broad worded law.
It's pretty specific.

The law is there to allow people at borders to be questioned to ascertain whether they are a terrorist irrespective of whether they're suspected - ie to allow spot checks. The chances therefore of it picking up terrorists is pretty minimal. What it's really good at is providing statistics.

I suspect that argument for interpreting it contrary to the wording used is that it's so specific it's pretty pointless.

If the person is already suspected, then they should be dealt with under different laws.

If they aren't questioned about whether they're a terrorist, it's a misuse of the law.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 7:27am

Do this people who write those stupid laws never ever read history?

Just look at the "for the children", it is noble and everything full of good intentions and it is now being used for everything to get more powers.

I despise true rapists that do it to children or adults, but I also can see the laws morphing to include tools that allow annoyed parents to fuck up boys and girls lifes for no other reason then just pure and simple revenge, or to make police feel good about putting drunks in the list because they happen to piss at night on a park that is used in the day by children.

You give that kind of power to others and eventually someone will abuse it, what then?
Hope for the best?

Those type of things although they may be necessary from time to time are extra-ordinary circumstances, they should not make up the day to day toolset available to law enforcement ever and if you are dumb enough to make it available, why the fuck do these people don't allow a transparent mechanism? security concerns? for who? the abusers of said powers?

Is just unbelievable that those people that are public servants can't see how those things interact with people and the dangers are.

Everyone can see it why can't a government servant?

This type of "oh it was never intended us such" sounds hollow, if he truly believe he is incompetent to write those laws and if didn't he is just another scoundrel trying to pull the wool of people's eyes.
[ link to this | view in thread ]
Zakida Paul (profile), 27 Aug 2013 @ 7:29am

If he authored it, he should have seen the potential for abuse from the very beginning. Everyone else did.

Where the potential for abuse is present, abuse is inevitable.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 7:30am

and a politician never meant to be a stooge.......
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 8:27am

Re: Anyone else notice?
Well, when the agencies are blatantly ignoring the legal requirements, it has no bearing what happened during the inception of the law. It is plain illegal activity getting carried out.

When that is said, there is certainly a lot to be said about politicians lacking any connection to reality when they have got a goal to pursue. If the industry is screaming "yes, please!", no politician seems to think twice about signing in blood.
[ link to this | view in thread ]
ethorad (profile), 27 Aug 2013 @ 9:28am

Not just journalists should be worried
Miranda seems to have been guilty of:
- possessing information which could help terrorism
- and that this information was stolen

I've discounted the second point, as if someone has information which could help terrorism it presumably doesn't matter if it has been stolen. Otherwise you would be suggesting that it's OK to help terrorists as long as you didn't steal stuff.

On the first point, the list of information which could help terrorism is massively broad, including:
- maps showing government buildings
- sitting schedules for parliament
- chemistry textbooks

So I wouldn't advise anyone with high school chemistry to travel. Particularly not if they know that No 10 Downing Street is the Prime Minister's residence, or that parliament sits at Westminster. Probably best if those terrorists report at their nearest prison immediately!

Anyway, got to go turn myself in now, was nice knowing you all.
[ link to this | view in thread ]
JTReyn (profile), 27 Aug 2013 @ 10:49am

A Hi-tech Answer to "Spies Gone Wild"
If Miranda wiped his laptop and cell phone clean before he left home, they would have had no excuse to confiscate them - or detain him. But moving everything to a cloud service like Dropbox or Skydrive wouldn't work because that's like putting them out in public, as his partner Greenwald has reported.

There's a new tool that's perfect for travelers with sensitive information. It's called a Cloudlocker (www'cloudlocker.it), a mini-cloud server that keeps all your digital media safe at home but is accessible on any device anywhere. It streams data to mobile devices without caching, so there's no trace left. This is technology fighting back against "Spies Gone Wild." The video is coming soon to a theater near you.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 11:00am

and how many other laws have been abused and then the person that introduced it tried to condemn the people who abused the law, not the way it was written or the attention it brought, together with the warnings from those looking ahead? the person introducing it knew exactly what would happen and chose to ignore the warnings on purpose!!
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2013 @ 11:06am

Technically Mr. Miranda is a terrorist. Those in power are truly terrified of him, his associates, and for that matter anyone lighting up the darkness.
[ link to this | view in thread ]
Killer_Tofu (profile), 27 Aug 2013 @ 12:06pm

Re: Re: Anyone else notice?
True, when it comes to law enforcement rewriting the laws as they see fit on the fly, what the intentions were matter even less.
[ link to this | view in thread ]
dadtaxi, 27 Aug 2013 @ 1:58pm

Re: Not just journalists should be worried
And to expand this even further:-

Miranda seems to have been guilty of:
- possessing information which could help terrorism
- and that this information was stolen

Hay, Ive just downloaded a architectural book of London buildings,(including a picture of the MI5 building) off a torrent, so now Im guilty of 'possessing information which could help terrorism' which was also 'stolen'

Looks like Im not going on holiday to Spain this year
[ link to this | view in thread ]
Spaceman Spiff (profile), 27 Aug 2013 @ 2:35pm

The law of unintended consequences...
This is what happens when those who draft and pass laws don't consider this factor - the law of unintended consequences. They only consider that "this law is good because...", and forget to consider why "this law is bad bacause...".
[ link to this | view in thread ]
caviaremptor (profile), 28 Aug 2013 @ 8:05am

Snowden's info helps privacy not terrorism. So far everything he's released I heard about ages ago that it's surprising it's raising so much awareness.
[ link to this | view in thread ]