British Human Rights Activist Faces Prison For Refusing To Hand Over Passwords At UK Border

from the digital-strip-search dept

As Techdirt readers will recall, in 2013 David Miranda was held by the UK authorities when he flew into Heathrow airport, and all of his electronic equipment was seized, in an act of blatant intimidation. His detention was under Schedule 7 of the UK's Terrorism Act, which, as its name implies, is supposed to be used only if someone is involved in committing, preparing or instigating "acts of terrorism."

That was clearly ridiculous in Miranda's case, and it's just as outrageous in the latest example of UK border bullying, this time against Muhammad Rabbani. He's a British citizen, and the international director of Cage, which describes itself as "an independent advocacy organisation working to empower communities impacted by the War on Terror." The Guardian fills in the background:

Rabbani, 35, from London, is involved through Cage in investigating torture cases. He said he was stopped at Heathrow in November returning from one of the Gulf states where he had been investigating a torture case allegedly involving the US.

He said he handed over his laptop and mobile phone but refused to provide his passwords. Although not a lawyer, he said the laptop contained information about the case and the client refused permission to release it. Rabbani was then arrested.

Rabbani later said that he felt that he had been subjected to a "digital strip search," and pointed out:

Using this power, [UK] officers can compel a person to surrender their passwords without cause and there's also no right to remain silent. There is nothing like this anywhere in the Western world.

Rather than dropping the case, this week the UK authorities have formally charged Rabbani under the Terrorism Act. He told the Guardian that he intends to fight, because the move has "serious implications" for journalists, lawyers and human rights, even though he faces three months in jail if he loses. This may be the first time Rabbani's been charged, but he is certainly no stranger to being stopped by the UK border officials:

Rabbani said he had been detained 20 times over the last decade by border officials and had handed over his laptop and mobile phone. On previous occasions, after refusing to hand over passwords, they were returned to him and he was allowed to go. But not on this occasion.

He's not alone in being subjected to this kind of harassment by the UK authorities. Figures published in an article on the Middle East Eye site reveal just how ineffective Schedule 7 examinations are at spotting terrorists:

More than 28,000 people were subjected to Schedule 7 examinations in 2015-16 resulting in about 10,000 intelligence reports being filed, according to a report by the Independent Reviewer of Terrorism Legislation.

About 500,000 are also estimated to have been subjected to pre-examination screening questions in the same period.

According to 2016 statistics, only 0.02 percent of stops lead to an arrest. An even smaller number lead to criminal charges.

The good news is that the UK court of appeal has already criticized Schedule 7 for forcing people to betray confidences and thus make it unlikely that others would trust them again with information in the public interest. That holds out the hope that Rabbani will ultimately win in the courts, since his case is very similar. The bad news, of course, is that the US is thinking of demanding passwords from every foreigner who visits the US.

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Filed Under: muhammad rabbani, passwords, schedule 7, terrorism act, uk

UK Appeals Court Says UK Terrorism Act's Detention Clause Violates Press Freedoms

from the good-to-see dept

As you may recall, back in 2013, soon after the Snowden revelations, the UK detained David Miranda at Heathrow Airport and took a bunch of his electronics, as he was flying through (from Germany on his way back home to Brazil). Miranda is Glenn Greenwald's partner, and the claim by the UK was that in Berlin he had picked up copies of Snowden documents. The UK claimed that the detention was okay under Schedule 7 of the Terrorism Act, which allows for detaining terrorists, not journalists. But the UK said that it was okay, because it classified publishing Snowden documents as an act of terrorism.

Miranda sued in the UK, arguing that his rights were violated. Almost two years ago, a court ruled that the detention was lawful. Miranda appealed, and in an important ruling this morning, the appeals court said that, while Miranda's detention may have been lawful, Schedule 7 is incompatible with human rights, with regards to protecting journalists, and could be subject to abuse (even if it says that Miranda's detention wasn't necessarily abusive). The court more or less ruled that the authorities acted within reason, given the existing law, but a specific part of the law, regarding how it handles journalists, was a problem with regards to the guarantees for a free press.

Reading through the full 36-page ruling is worthwhile. The ruling is a victory for those concerned about abuses against journalists under the Terrorism Act -- but only a fairly narrow one. For example, the court does note that publication can "amount to an act of terrorism" if the publication "endangers a person's life" and the person publishing "intends it to have that effect." I can understand why someone might make that argument, but it still seems troubling to argue that any form of expression alone is an "act of terrorism."

Where the court disagrees with the government's claims, is in noting that Schedule 7 conflicts with Article 10 of the European Convention on Human Rights, which guarantees freedom of expression (not nearly as broadly as the US's First Amendment, but at least somewhat), because it could be read to force journalists to give up sources, potentially harming a free and open press:

The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

Given that, the court rules that Schedule 7 is currently "incompatible" with article 10, and thus the UK Parliament needs to change the law to fix that problem. The court does point out that there may be some easy fixes:

The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.

So it appears that the UK could fix this deficiency pretty easily -- but in a way that would better protect journalists. I recognize that there are a number of statements and press releases that are excited about this ruling, but it does appear to be a bit of an overstatement. Yes, finding problems with Schedule 7, especially as it relates to journalists, is a big deal. But the concerns seem to be pretty narrowly focused, and open to a rather quick fix by the UK Parliament. A stronger ruling would have been better, but at least the court recognized some problems with the current setup of the law with respect to press freedoms.

As for what happens next? The UK could challenge the ruling at a higher level. Or it could change the law, as suggested by the court. Or it could ignore the ruling, which would lead to a European challenge. So this isn't necessarily over yet....

Filed Under: article 10, david miranda, detention, free press, human rights, journalism, schedule 7, terrorism act, uk

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

from the journalism-equals-terrorism dept

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.

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

Will State Department Condemn The UK For Using Terror Laws To Stifle Journalism?

from the it's-done-so-with-others dept

We wrote earlier about the incredible situation in the UK, in which the government there is making the ridiculous argument that it was appropriate to detain Glenn Greenwald's partner David Miranda at Heathrow under an anti-terrorism law because his journalistic activities qualify as terrorism because they might "influence a government." It seems fairly obvious to most rational observers, that the UK is redefining anti-terrorism laws to stifle journalism it doesn't like.

Trevor Timm, over at the Freedom of the Press Foundation wonders if the US State Department will condemn the UK for this activity, noting a long history of the State Department condemning countries who use anti-terror laws to stifle journalism.

For example, in January 2012, in response to Ethiopia jailing award-winning journalist Eskinder Nega, the State Department expressed “concern that the application of anti-terrorism laws can sometimes undermine freedom of expression and independent media.” Again in June State Department released a statement saying the US “The Ethiopian government has used the Anti-Terrorism Proclamation to jail journalists and opposition party members for peacefully exercising their freedoms of expression and association.”

The 2012 State Department human rights report on Turkey criticizes the country for imprisoning “scores of journalists…most charged under antiterror laws or for connections to an illegal organization.”

In April 2013, the State Department cited Burundi for imprisoning radio journalist Hassan Ruvakuki and three of his colleagues for “acts of terrorism.”

Just last month, in response to respected Moroccan journalist Ali Anouzla being arrested under an anti-terror law for linking to a Youtube video, the State Department said, “We are concerned with the government of Morocco’s decision to charge Mr. Anouzla. We support freedom of expression and of the press, as we say all the time, universal rights that are an indispensable part of any society.”

So now when a close ally is doing exactly the same thing -- but it's in an effort to stifle journalism the US probably doesn't much like either -- will the State Department react the same way? A reporter for The Guardian, Dan Roberts, apparently asked the White House that question, and White House spokesperson Jay Carney gave one of those "I'll have to get back to you" kind of answers, which suggests no intention of actually answering the question. Hopefully Roberts and other reporters will continue asking the question until an actual answer is given.

Filed Under: david miranda, schedule 7, state department, terrorism, uk

UK Officials Argue That David Miranda Was, In Fact, A Terrorist

from the oh-really-now? dept

You may recall the farce in the UK that is the story of the nine-hour detention of Glenn Greenwald's partner, David Miranda, while he was held over while flying through Heathrow to get from Berlin to Brazil. Miranda's devices were seized under an anti-terrorism law, which can only be used to deal with terrorism. Even though many have admitted it was really just to send a message to Greenwald and other reporters, many UK officials have maintained that the detention was fully justified, despite no evidence to support that. Even the author of the law that was used to stop Miranda has argued that it was not intended for such uses.

However, last week in court, the UK laid out its case, as presented by Scotland Yard -- and they actually are going to try to claim that Miranda's actions -- carrying some of Snowden's encrypted documents -- is a form of both espionage and terrorism.

Intelligence indicates that Miranda is likely to be involved in espionage activity which has the potential to act against the interests of UK national security," according to the document.

"We assess that Miranda is knowingly carrying material the release of which would endanger people's lives," the document continued. "Additionally the disclosure, or threat of disclosure, is designed to influence a government and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism..."

Read that again and let it sink in. UK officials are arguing that if you have any material which, if disclosed, might "influence a government," you are, by definition, a terrorist. That makes a very large number of people terrorists. By this definition, basically any whistleblower is a terrorist. Anyone with embarrassing, but factual, information about a government official might be deemed a terrorist as well. Something is very broken if that's considered the actual standard in the law.

Filed Under: david miranda, glenn greenwald, schedule 7, terorrism, uk

UK Using Anti-Terror Laws To Harass And Intimidate Human Rights And Democracy Activists

from the shameful dept

You may recall that, last month, Glenn Greenwald's partner David Miranda was detained at Heathrow for nearly 9 hours for helping Greenwald do journalism. There were many problems with this detention, not the least of which that officials used an anti-terrorism law, called Schedule 7, for the detention. The author of Schedule 7, Charles Falconer, specifically has said that the law wasn't intended for such purposes. And yet, it appears that the UK authorities aren't backing down from abusing Schedule 7 to intimidate people having nothing to do with terrorism.

The latest is using Schedule 7 to detain and intimidate a human rights and democracy activist from Yemen. Let me repeat it: this is someone advocating for democracy, and they're being detained and harassed under an anti-terrorism law. Something is seriously screwed up here.

Baraa Shiban, a respected human rights activist who works in Yemen as a project co-ordinator for the London-based legal charity Reprieve and was travelling to London to speak at an event, said he was held for an hour on Monday night and questioned about his work and political views.

He was detained under schedule 7 to the Terrorism Act, the same legislation used last month at Heathrow to detain David Miranda, the partner of Glenn Greenwald, the Guardian journalist who has written about mass internet surveillance by the US National Security Agency and Britain's GCHQ.

Shiban is a member of Yemen's National Dialogue – the body tasked with mapping out the country's democratic future

Shiban was going to the UK to give a speech on, of all things, "security, diplomacy and aid." He may want to edit the planned remarks slightly. Shiban further pointed out that the detention was focused on his human rights activities. Remember this is under a law that is supposed to only be used to stop terrorists.

Shiban said: "I was stunned when the border agent said I was being held simply because I came from Yemen. It was even more shocking when he spent the entire time asking me about my human rights work and about Reprieve, the charity I work for.

"Is the UK the kind of place that human rights activists are fair game for detention, intimidation and interrogation?"

The excuse given by Sussex police is especially pathetic:

A spokesman said: "He was referred to Sussex police by Border Force officials. He spoke with officers for around half an hour and was then free to continue his journey. We are satisfied that our actions were legitimate, justified and proportionate and were carried out in accordance with the act."

Remember, the act is supposed to only be used in investigating possible terrorist activity. These are the kinds of activities that we used to associate with authoritarian non-democratic countries. And now we're regularly seeing such abuse in the US and the UK.

Filed Under: activism, anti-terror, baraa shiban, human rights, schedule 7, terrorism, uk, yemen

Blatant Intimidation: Glenn Greenwald's Partner Detained At Heathrow Under Terrorism Law, All His Electronics Seized

from the obnoxiousness dept

In a move that is clearly driven more to intimidate Glenn Greenwald than anything else, his partner, David Miranda, was detained for nine hours at Heathrow airport, which he was flying through on his way home to Rio de Janeiro from Berlin. On top of that, all of his electronics -- his mobile phone, laptop, camera, memory sticks, DVDs and games consoles -- were seized and not returned. This was nothing but basic government thuggery and intimidation. There is simply no credible reason to detain Miranda other than to "send a message" to Greenwald as punishment for doing his job and exposing government abuse. The law under which he was detained, Schedule 7, is extremely controversial already, but it appears that the UK officials were clearly abusing it.

As Jerome Taylor notes, Schedule 7 makes clear that the "power to stop, question and detain" applies solely for the purpose of "if they fall within section 40(1)(b)," which you can look at here:

40. Terrorist: interpretation.

(1) In this Part “terrorist” means a person who—

(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

(2)The reference in subsection (1)(b) to a person who has been concerned in the commission, preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation or instigation of acts of terrorism within the meaning given by section 1.

In short, the only reason you're supposed to be able to detain someone is to determine if they're involved in committing, preparing or instigating "acts of terrorism." Clearly, that's ridiculous when it comes to even Glenn Greenwald, let alone his partner. The law is already ridiculous enough in that it allows officials to detain anyone, even without suspicion, solely for the purpose of questioning them to see if they fall under this section (i.e., having something to do with terrorism). Under the law, they have nine hours to do this questioning, and then they need to release or arrest the detainee. In this case, they held Miranda for all nine hours. This is not common. As the Guardian points out, the government's own stats show that 97% of people detained under this law are released in less than an hour. Only one person out of every 2000 are kept for more than six hours. Yet, suddenly, they had to hold Miranda for all nine hours and then take all of his electronics?

That's just government thuggery and intimidation.

Filed Under: david miranda, glenn greenwald, intimidation, journalism, schedule 7, terrorism, uk