It usually gives me great and smug pleasure to be able to say, “I told you so”; and this blog has done that on a few occasions. This time it gives me no pleasure – and I’ll come to that later.
David Miranda was detained at Heathrow airport for 9 hours, and his computer equipment confiscated by the Metropolitan Police. There was huge concern voiced by civil liberties groups; and a judicial review was launched.
At the time I said that all the police had to do was justify the suspicion that Miranda was a terrorist as defined in the Terrorism Act; which would be easy. I was taken to task on Twitter by bmaz:
What I said was this:
…and assuming that his laptop contained Snowden documents (which would be reasonable suspicion),
- the stated purpose of the leaks is to influence government
- the stated purpose could be described as both ‘political’ and ‘ideological’
- the effect, according to government, could result in increased terrorist attacks against the UK (that is, “a serious risk to the health or safety of the public”) and is also designed “to interfere with or seriously to disrupt an electronic system” (that is, GCHQ’s Tempora surveillance system).
I think it is quite clear that under the Terrorism Act, David Miranda is a terrorist.
Yesterday, Saturday, the Guardian quoted from the police documents referred to in the judicial review. The final Port Circular Notice – the document used by the police to justify Miranda’s detention – includes the following paragraph:
We assess that Miranda is knowingly carrying material, the release of which would endanger people’s lives. 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 and as such we request that the subject is examined under schedule 7.
Well, I told you so. But this time it gives me no pleasure to say so, because it confirms my final statement in that post:
“This is a police state in action; and the Terrorism Act is one of its tools.”
I sometimes wonder what is the purpose of the police: is it to protect the public or to catch criminals. The problem is that these two functions are often mutually exclusive — definitely in the short-term.
You could argue that by catching criminals you are protecting the public from their potential future crimes. You could also argue that catching this actual criminal might deter that potential criminal — and that again you are protecting the public from potential future crimes.
The weakness in this argument is that a criminal doesn’t become a criminal until after the crime is committed. By definition, catching a criminal means that you have failed to protect the public.
A clear definition of primary purpose will therefore affect basic police operations, and have a fundamental effect on the public.
Here’s an example; but it will involve a small leap of faith to begin with — I forget the precise source. I hope, however, you can trust my memory. It was a chat between two very successful hackers. One of them said words to the effect, “I watch the news because that’s how I learn when my hack has been discovered.”
Basically, that’s the time for him to get out, cover his tracks and lie low.
It follows that if there is no news of the breach, law enforcement has a greater opportunity to apprehend the criminal who might just hang around on the network long enough for the forensic investigators to gather incriminating evidence.
But at what potential cost to the public? Bill Snyder got caught up in the Vendini breach earlier this year, and wrote about it on CIO:
I got an email from Vendini on May 23 that says: “We regret to inform you that on April 25, 2013, Vendini, Inc. detected an unauthorized intrusion into its systems.” Excuse me? April 25? That’s nearly a month between the discovery of the hack and the arrival of that email, which means the bad guys had weeks to pillage my accounts, and hundreds of thousands, maybe millions, of people who have used the service. (Vendini also posted the message online.)
Why didn’t the company notify us? Says Vendini: “We are actively cooperating with federal law enforcement, and this notification to you was delayed specifically to support law enforcement’s investigation.”
Online Ticketer Vendini Hit by Hack, Warns Customers a Month Later
If this is true, it is an example of police action that prioritizes apprehension of the criminal over protection of the public. Had protection been the priority, then the breach notification would have been instant, regardless of making the potential apprehension potentially more difficult.
It’s a difficult one.
Well, actually, for me — no it is not. The absolutely prime, overriding, fundamental purpose of the police should be to protect the public. I would suggest that the loss of focus by the police — where success is now viewed as a league table of people locked up rather than the fulfillment of protecting and serving the public — is key to the increasingly macho and manipulative law enforcement agencies we now have.
When I was young we lived by the belief and principle that an Englishman in England is free to do anything he wishes provided that there is no law to the contrary. In those days it was true and meaningful. These days it is true and meaningless. The number of new statutes and limitations passed by parliament since my youth now makes it safer to simply assume it is illegal.
The principle has just been reiterated. In 2011 Susannah Mengehsa took part in a protest. She was caught in a police kettle operation. Before being released (without charge over anything), she had to identify herself with name address and date of birth, and submit to a search and filming. In other words, the police were building a database of protesters for no reason other than they were protesters.
The court has now decided that the kettling was lawful, but the information gathering and filming was not. Lord Justices Moses and Mr Justice Wyn Williams have ruled:
The absence of any statutory power to obtain identification in the circumstances in this case establishes conclusively the unlawfulness of the police action in requiring the claimant to be filmed and give her name and address and date of birth before she was released from containment.
In other words she was free to decline to provide information because there is no law saying she has to do so. The optimists among us are delighted, “The question must now be what action will be taken by the Metropolitan police to ensure this kind of issue does not continue to arise and this must involve meaningful sanctions for officers who act unlawfully,” said Nick Pickles, director of Big Brother Watch.
There will be no sanctions and the police need do nothing at all – just wait for the muppets of parliament to pass a new law saying they were right all along; and that they are entitled to gather personal information from uncharged innocent citizens.