UK Court Rules Miranda Detention At Heathrow Airport Was Lawful, But Questions Remain About What Was Seized

from the journalism-equals-terrorism dept

Wed, Feb 19th 2014 8:50am — Glyn Moody

A UK Court has ruled that the nine-hour detention of Glenn Greenwald's partner David Miranda, and the seizure of his electronic equipment, was lawful and proportionate, and did not breach freedom of expression rights in Europe: Three high court judges have dismissed a challenge that David Miranda, the partner of the former Guardian journalist, Glenn Greenwald, was unlawfully detained under counter-terrorism powers for nine hours at Heathrow airport last August.

The judges accept that the stop and seizure of computer material was "an indirect interference with press freedom" but says this was justified by legitimate and "very pressing" interests of national security.

The three judges, Lord Justice Laws, with Mr Justice Ouseley and Mr Justice Openshaw, conclude that Miranda's detention at Heathrow under schedule 7 of the Terrorism 2000 Act was lawful, proportionate and did not breach the European human rights protections of freedom of expression.
Reading the full judgment (pdf), it's clear that the judges believed that national security outweighed the issues of press freedom, which the judges acknowledged. As well as proportionality, the other key question the judges had to address was whether schedule 7 of the UK Terrorism 2000 Act actually applied in this situation. It might seem surprising that they decided that it did, since Miranda was carrying documents for the purpose of journalism -- hardly what most people regard as terrorism. But the judges came to this conclusion because of the very broad framing of the UK's Terrorism 2000 Act, which says: (1) In this Act 'terrorism' means the use or threat of action where --

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
Subsection (2) includes: (c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public
The court seems to have been persuaded by the UK government's statements that the material carried by Miranda could put lives at risk if disseminated, even though the documents were encrypted "very heavily". No evidence was offered that Miranda had leaked anything to anyone -- unlike GCHQ, say, which had allowed its top secret materials to be seen by many individuals in the US, one of whom was Edward Snowden.

Speaking of encryption, there's a mystery here. Throughout the judgment, there is a reference to "approximately 58,000 highly classified UK intelligence documents". This figure comes from Oliver Robbins, Deputy National Security Adviser for Intelligence, Security and Resilience in the UK government's Cabinet Office, who stated that:

the encrypted data contained in the external hard drive taken from the claimant contains approximately 58,000 highly classified UK intelligence documents. Many are classified SECRET or TOP SECRET. Mr Robbins states that release or compromise of such data would be likely to cause very great damage to security interests and possible loss of life.

The question is: how did he know there were 58,000 GCHQ documents if the hard drive was encrypted? Miranda is quoted in the judgment as saying he was "unable to open it himself": did GCHQ manage to break the encryption, perhaps with some help from its friends at the NSA? Or did it already know what Snowden had copied, and assumed all those documents were on the hard drive? Or perhaps it just made up those figures; some clarification from Glenn Greenwald would be welcome here.

Meanwhile, we're left with an awful result for freedom of the press in the UK. Miranda's lawyers have said that they have applied for permission to take the case to the Court of Appeal:

Despite recognising that the proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring, this judgment leaves little room for responsible investigative journalism which touches on national security issues. Journalism is currently at risk of being conflated with terrorism. Therefore, our client has no option but to appeal. In the meantime, whilst the courts consider our appeal, we understand that journalists are making alternative travel plans to safeguard their material, sources and confidential working systems when they have to travel via the UK. The Government should be very concerned about this and the message it sends internationally.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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: david miranda, detention, ed snowden, glenn greenwald, heathrow, schedule 7, uk

37 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 19 Feb 2014 @ 8:55am

(b) the use or threat is designed to influence the government
So if I publish an account of the government screwing up and hope that will make them try to not screw up, that falls under this act. Therefore, journalism IS terrorism.
[ link to this | view in thread ]
dr evil, 19 Feb 2014 @ 8:56am

count the documents
Well, you see, there were these documentsthat we placed on the HD for the defendant ....
[ link to this | view in thread ]
That One Guy (profile), 19 Feb 2014 @ 8:58am

Moral of the story:
If you're a member of the press, or connected in some way to a member of the press, and you aren't from one of the government PR 'news' agencies, stay away from the US and UK, they do not take criticism or light being shed on their actions well(to put it mildly).
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 9:02am

Re:
And people wonder why I call the UK and US Governments terrorists.
[ link to this | view in thread ]
John Fenderson (profile), 19 Feb 2014 @ 9:13am

Re: Re:
What people wonder this? It seems obviously true to me.
[ link to this | view in thread ]
David, 19 Feb 2014 @ 9:15am

Re:
Not just journalism. For example, if you are traveling to the UK in order to vote there and carry your id card with the intent to use it for the purpose of legitimizing yourself at the voting booth, you are clearly trying to influence the government and fall under the terrorist act.

In fact, any action associated with democracy is an action intended to influence the government. That's the point of democracy.

So this act basically states that democracy is terrorism that the government needs to be able to protect itself from.

That makes a whole lot more sense than I'd like it to.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 9:23am

just like the USA, use the old 'National Security' and you can get away with anything! if this stop was lawful, my ballbag's a pussy! i'm trying to figure out how the papers in his possession (if he indeed had any?) were going to create a terrorist threat or blow something up? those papers were proof of how the UK government had been spying on the public, without any due process. this was a big embarrassment to the government and they sure as hell didn't want it let out. but that's the trouble when you behave like an arse hole, sooner or later the shit comes out!!
[ link to this | view in thread ]
DeadBolt (profile), 19 Feb 2014 @ 9:24am

(b) the use or threat is designed to influence the government

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

Politicians break those laws every day, but lucky them they are immune to prosecution for any of it.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 9:28am

Re:
But they are doing these to protect the nation.
You cant doubth that, the intention is there.
But what did they expect? They were taking the whole "muh children" thing too far, and a lot of people foretold what will happen.
[ link to this | view in thread ]
John Fenderson (profile), 19 Feb 2014 @ 9:30am

Re: Re:
In fairness, the commonly accepted definitions of terrorism include the use or threat of violence with the goal of influencing a government. Voting isn't that, and so isn't terrorism.

Even that definition is problematic, though, and is way too broad of a definition. On the plus side, it means that literally every military on Earth is, by definition, a terrorist group.
[ link to this | view in thread ]
John Fenderson (profile), 19 Feb 2014 @ 9:32am

Re: Re:
I don't believe that the intention is to protect the nation at all. I think the intention is to protect those in power, the nation be damned.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 9:34am

The US and UK governments have made such a mockery of the phrase "national security" that it means absolutely nothing anymore.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 9:45am

Re:
Of course "national security" means something. It means "Yes we are violating your rights and we really don't want to have to justify ourselves."
[ link to this | view in thread ]
David, 19 Feb 2014 @ 9:49am

Re: Re: Re:
It doesn't matter what "the commonly accepted definitions of terrorism" are when the act explicitly defines the
use or threat of action (note: "action", not "violence") with the intent of influencing the government as the trigger condition. To wit:

(1) In this Act 'terrorism' means the use or threat of action where --
[...]
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

So yes, the threat of action designed to influence the government, and that clearly includes journalism and voting, is what this act defines to constitute terrorism.

It is spelled out quite unambiguously.
[ link to this | view in thread ]
TheResidentSkeptic (profile), 19 Feb 2014 @ 9:59am

You are pissing off the terrorists
Several key terrorist organizations are in an emergency meeting to determine how to accomplish THEIR goal of destroying the governments of the "free world" before the governments do it themselves.

We need to stop this foolishness! Think of the Terrorists!

[ I'd put /sarc but I don't think I'm actually being sarcastic... ]
[ link to this | view in thread ]
That One Guy (profile), 19 Feb 2014 @ 10:00am

Re: Re: Re:
The thing is, a lot of the politicians and courts have been in their positions for so long, they've come to see themselves as the nation.

What serves them serves the nation, what harms them harms the nation, and so on, they're incapable of seeing themselves as what they are supposed to be, servants of the country and it's people, and instead see themselves as, to put it bluntly, rulers of it, the 'face' of the county so to speak, so anything that threatens their jobs, authority, or 'image' is seen as a direct attack against the nation as a whole.
[ link to this | view in thread ]
John Fenderson (profile), 19 Feb 2014 @ 10:02am

Re: Re: Re: Re:
But under UK law, "action" doesn't mean any action. It's still far too broad, but doesn't include voting. Here's the law:

(1) In this Act "terrorism" means the use or threat of action where:

(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it:

(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 10:05am

Seems that the government personnel that detained Miranda violated the terror law:
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
[ link to this | view in thread ]
That One Guy (profile), 19 Feb 2014 @ 10:13am

Re: Re: Re: Re: Re:
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

Voting may not be enough to be classified as 'terrorism' under the definitions, but with how broadly it's worded, a campaign of 'vote against/for X, or you won't be re-elected next voting cycle' would seem to easily fit under the definitions.

After all, it's a 'threat' designed to 'influence the government', 'advancing a political, religious or ideological cause'.
[ link to this | view in thread ]
PRMan, 19 Feb 2014 @ 10:44am

Re: Re: Re: Re: Re: Re:
So Christian missionaries have been outlawed by the UK government as well?
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 11:11am

"(1) In this Act 'terrorism' means the use or threat of action where --

(b) the use or threat is designed to influence the government"

So protestors are terrorists, because they're attempting to influence the government? This broadly worded "anti-terror" law is garbage, and a violation of human rights.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 11:11am

Re: Re: Re: Re: Re:
It does endanger the safety of the politicians in power, because if you wake up and vote them out, the door might hit them on their fat rears!
[ link to this | view in thread ]
David, 19 Feb 2014 @ 11:28am

Re: count the documents
Well, it's not most likely that they planted documents if they let him go after almost nine hours.

If he is smart, he is not going to use that laptop for anything related to investigative journalism ever again. And preferably never connects it to any internal network again, either.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 11:47am

Legality
In other news, wife-beater opines hitting women not against the law.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 12:31pm

"the judges accept that the stop and seizure of computer material was "an indirect interference with press freedom" but says this was justified by legitimate and "very pressing" interests of national security.�"

The moral of the story children, "national security" supercedes the individual right, ......what a wonderful world were living in today
[ link to this | view in thread ]
Richard (profile), 19 Feb 2014 @ 12:34pm

Re: Re: Re: Re: Re:
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

So comedy terrorism against electronic systems is OK - that's good to here.
[ link to this | view in thread ]
John Fenderson (profile), 19 Feb 2014 @ 2:48pm

Re: Re: Re: Re: Re: Re:
You're totally ignoring clause 2, which pretty specifically defines what types of use or threat qualify. Threatening to withhold a vote if the politician doesn't do what you want is clearly not terrorism under this law.
[ link to this | view in thread ]
Anonymous, 19 Feb 2014 @ 4:13pm

Re: Re: Re:
The nation IS damned.
[ link to this | view in thread ]
Duke (profile), 19 Feb 2014 @ 5:01pm

The question is: how did he know there were 58,000 GCHQ documents if the hard drive was encrypted?
From what I remember of the witness statements and the judgment there was an index file on the drives that wasn't encrypted or to which Miranda did have access. Secondly, I think the UK Government had some idea of what documents Snowden had taken (possibly all the set that they had shared with the NSA?), so just needed to match the encrypted documents up with what they thought was copied.

The police had reported that they'd decrypted a few of the documents before the hearings happened, so either they had passwords, or were able to reverse the encryption by knowing what the files were.
[ link to this | view in thread ]
Just Sayin', 19 Feb 2014 @ 5:43pm

Well, there ya go.
None of this is very surprising, if anything what is surprising is that anyone would complain.

The documents in question were obtained illegally, and possession of them is a real issue. Transporting them generally would be seen as a crime, and from a technology standpoint also seen as something stupid. Those documents could have been much more easily transferred online without the transport. Trying to walk it through customs is an invitation for problems.

There are reasons why Greenwald is South America and not travelling himself, and it's not just for the weather.
[ link to this | view in thread ]
Anonymous Coward, 19 Feb 2014 @ 7:15pm

On The Bright Side
If I read this article correctly, it also means that all Lobbyists are, by definition, terrorists. Couldn't happen to a nicer bunch!

As for the contents of Miranda's drive, unless the NSA or GCHQ is a lot more facile at breaking encryption than I think they are, the prosecutors are simply following the well established policies and practices of their sponsors, the Entertainment Industry. They made the numbers up then doubled the numeric quantity and moving the result up to the next unit of measure, ie: 2,900 became 58,000. Simple!
[ link to this | view in thread ]
Coyne Tibbets (profile), 19 Feb 2014 @ 7:47pm

How they got 58,000
How did they know there were 58,000 GCHQ SECRET documents on his drive? Break the encryption? Know what Snowden copied? Make up the figures?

No, no, and no.

They got the number by a very simple and underhanded strategy: There are 58,000 encrypted documents, therefore they are all GCHQ secrets. So what if Miranda says they aren't? The only way he could prove GCHQ wrong is to decrypt all the documents.

Guilty until he proves himself innocent. Of course he can't do that: if he can't decrypt them, he's stuck; and if he can, he'd show them what he has.
[ link to this | view in thread ]
That One Guy (profile), 19 Feb 2014 @ 8:39pm

Re: Re: Re: Re: Re: Re: Re:
Ah, so I am, I missed the 'and' bit at the end of the qualifications, I assumed it was a case of 'if it matches any of these, it's considered terrorism'.
[ link to this | view in thread ]
Anonymous Coward, 20 Feb 2014 @ 8:04am

Re:
"(b) the use or threat is designed to influence the government
So if I publish an account of the government screwing up and hope that will make them try to not screw up, that falls under this act. Therefore, journalism IS terrorism."

Exactly. Looks like the case is sabotaged by Miranda's own lawyers: Matthew Ryder, Edward Craven and Raj Desai.

First thing should be to challenge police standing before arguing other claims. Since Miranda did not enter UK (was in transit) then this specific Met unit had no authority to act there.

Second, let them argue probable cause first. Note, that they admit executing enforcement of criminal statue, not a matter of border crossing. All the rest should fall thereafter.

Third is the above remark. Lawyer should challenge statue as "unconstitutional". The whole "Act" was written by a moron, who had no clue about basic jurisprudence: law must be defined. What we have here is murky legal bullshit all along.

And then there is completely missing claim of right to privacy under ECHR. Cost nothing to include, ensures additional winning claim before ECHR, and allows for discovery of defendant's docs, or at least aknowledgement of certain facts.

Judge, one John Laws, comes up with opinion at the level of a toddler. Can't even sort claims right in order to address them point by point.
Looos like he got commission solely because he is an apparatchik. Kinda old USSR court.

I don;t think it is wise on part of the gov to try this case in ECHR. Any lost claim will backfire badly and force changes they want to avoid in the first place.

PS:

The doc is blocked today at court's own website.
[ link to this | view in thread ]
Anonymous Coward, 20 Feb 2014 @ 8:10am

Re: Moral of the story:
"If you're a member of the press, or connected in some way to a member of the press, and you aren't from one of the government PR 'news' agencies, stay away from the US and UK, they do not take criticism or light being shed on their actions well(to put it mildly)."

which begs question: who at The Guardian and why booked his flight via LHR?
[ link to this | view in thread ]
Anonymous Coward, 20 Feb 2014 @ 9:26am

Re: Re: Re: Re: Re: Re: Re: Re:
Same here. I just think it's interesting that journalism fulfills 2 out of 3 criteria.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2014 @ 12:10am

Re: Well, there ya go.
horse with no name just hates it when due process is enforced.
[ link to this | view in thread ]