Why CAGE believes the new Crime (Overseas Production Orders) Bill should alarm all who care about privacy.

2019-02-01T12:22:22+00:00 February 1st, 2019|Articles|

A new bill passing through parliament will strip away safeguards for capturing data and  facilitate the sharing of information with foreign governments with little to no protections for citizens. This is a gross violation of our right to privacy and it is why we have lent our name to a letter [in full below] published yesterday in the Guardian, highlighting the dangerous risks it poses..

The bill is the culmination of a steady loosening of legal safeguards against state intrusion into personal affairs since the advent of a raft of policies passed in the wake of 9/11 for the purpose of ‘counter-terrorism’.

These laws, which average about one every other year, have facilitated policies such as PREVENT and Schedule 7, both marketed to the masses as preventative measures but which have been nothing of the sort.

These laws have seen the erosion of due-process norms, the right to individual privacy, the right to hold dissenting views and beliefs, the right to ensure confidentiality of sensitive information particularly that which implicates state actors, and the right to ensure journalistic integrity and source protection, which is required for a robust and independent media and civil society that holds power to account.


Read more: PREVENT, like Schedule 7, just another intelligence gathering operation

Instead of stepping back and honestly assessing the damage of these policies , we are seeing them being constantly amended and developed. Within this climate of fear, a political and legislative atmosphere is created which facilitates bills such as these that will affect wider segments of the population.

Now, the new bill, known as the Crime (Overseas Production Orders) Bill will increase the power given to authorities to gather data. The bill is a logical progression of the unchecked, draconian state powers afforded to security and state through ‘War on Terror’ policies.

These policies include PREVENT, Schedule 7 (where suspicionless stops at airports are legal and resisting a “digital strip search” and detention for up to six hours with no right to remain silent, can land you with a terrorism conviction), the Snoopers Charter, also known as the Investigatory Powers Act, and most recently the CTBS Bill.


Read More: May’s ‘world leading’ Snooper’s Charter follows in Britain’s lead on CVE/PREVENT

Most concerningly, the Bill skirts ordinary safeguards for privacy and allows for cross-border data sharing between governments with little to no protections for citizens. It does so while lowering the threshold for access to private data and in particular for ‘terrorist’ investigations, where no evidentiary threshold is required at all – this, despite the broad and Islamophobic notions that exist around what actually constitutes a ‘terrorism’ threat.

Through this law and the raft of previous legislation passed since the WoT, data gathering from us, the commencing of investigations based on this data, and other intrusions into our privacy, will now be highly politicised.

It will also bypass the normal legal safeguards of due process. This resembles a “state of emergency” response that is in no way proportional to the actual threat, and which has singled out Muslim communities in the past but now will affect the public and private life of all citizens.

This has been coming for some time. In 2013, David Miranda felt the brunt of the Schedule 7 law when he was detained and interrogated for nine hours by UK counter-terrorism police at Heathrow airport, since he was carrying information obtained from Edward Snowden. A High Court later ruled in his case that the policy was incompatible with the law protecting journalistic sources and client confidentiality.

But safeguards for journalists alone in the unending “War on Terror” are not enough. CAGE’s International Director Muhammad Rabbani was convicted of a terrorism offence under the same law as Miranda, Schedule 7, for protecting the confidential testimony of a torture survivor, when he was stopped at Heathrow airport in 2017.

Despite judges accepting that Rabbani had indeed been protecting a client, they were bound by the law to convict him. Subsequent challenges and appeals have been rejected by the courts. Though CAGE won the moral victory in this case, this outcome has set a startling precedent.


Read more: Private and confidential data at UK borders ‘unsafe’ following High Court judgement. Rabbani to appeal to Supreme Court

Our co-signatories on the letter urging caution about the bill, are rightly concerned with media independence and the protection of sources. While it’s essential to protect these freedoms, it is also essential to ensure that innocent people who clearly pose no threat, are also protected from unwarranted state intrusion.

Indeed, the powers given in this new bill, cannot be seen in isolation from the increasingly intrusive global surveillance and security architecture, and a two-tier justice system for Muslims that has seen a steady erosion of legal safeguards against state abuse, all in the name of the ‘War on Terror’ and ‘national security’.

While together challenging the excesses of the Crime (Overseas Production Orders) Bill, we must also push back against the toxic policies and misguided notions that have brought us here. This is essential if we are to maintain trust and strive for a just and fair society.

 

FULL LETTER: UK NGOs concerned over press freedom implications of Crime (Overseas Production Orders) Bill

The Crime (Overseas Production Orders) Bill is a major shake-up of how authorities access the data of people in the UK and overseas, in the context of investigating and prosecuting serious crime.

We welcome better measures to tackle serious crime, but bad legislation will unnecessarily erode privacy, freedom of expression, and press freedom. It is possible to have more effective investigation and prosecution while also protecting these fundamental rights, but this bill fails to do so. Many of the powers in the bill are unprecedented and broad; for example, a general power for the police to apply for electronic content does not currently exist in UK law.

Section 20 (2) of the Investigatory Powers Act 2016 sets a minimal threshold for authorities to access content: a warrant can only be deemed necessary if it is in the interests of national security, the prevention or detection of serious crime (defined in s.263, though reasonable grounds are not required), or in the interests of the economic well-being of the United Kingdom so far as it relates to national security. However, the threshold set in the Crime (Overseas Production Orders) Bill is that there must be reasonable grounds for believing that an indictable offence has been committed (cl. 4(3)), unless the order is sought for the purposes of a terrorist investigation, in which case no evidentiary threshold is required at all.

Whilst we welcome the requirement of reasonable grounds, an ‘indictable offence’ threshold is lower than even the minimal threshold set out in the Investigatory Powers Act 2016, which is already subject to judicial review. Therefore, this bill risks instating a two-tier system, further jeopardising privacy rights and freedom of expression rights protected by Articles 8 and 10 of the Human Rights Act respectively.

The Crime (Overseas Production Orders) Bill has two aims:

  1. it sets new rules when UK authorities are accessing communications data from overseas servers;
  2. it also envisages a brand-new framework of treaties to allow overseas courts to access UK-based data.

On the first aim, the bill establishes a quick route for UK authorities to access information stored on servers overseas – and that includes what’s held by big platforms and telecoms companies based in the US. But that route also takes a shortcut through important protections for citizens’ privacy, which results in a draconian new regime.

In the UK, there are rules around production orders that protect privacy and freedom of expression – they’re contained in the Police and Criminal Evidence Act 1984 (PACE). Namely, the material sought has to be of substantial value to an investigation and likely to be relevant evidence; other methods of obtaining the material have to have been tried unless they were bound to fail; and it has to be in the public interest. This bill ignores these protections. That leaves UK citizens vulnerable – including journalists who need these protections to do work in the public interest. We ask that MPs and Peers include these protections in the bill.

On the second point, the bill will enable the Government to enter treaties to allow foreign governments to make inbound applications for information held in the UK. But it is silent on what, if any, checks and safeguards there will be. This may well result in overseas authorities – including police forces and authorities from undemocratic countries – having greater powers over UK-held data.

We urge MPs and Peers to insist that these future treaties mirror the existing safeguards in UK production orders as a minimum, and that they provide at least equivalent levels of protection for freedom of expression and privacy. There should be a commitment in this bill that robust safeguards will apply.

Signed:

Reporters Without Borders

Index on Censorship

English PEN

Big Brother Watch

Open Rights Group

National Union of Students

Committee on the Administration of Justice

CAGE

 

(CC Image courtesy of taz on Flikr)

(NOTE: CAGE represents cases of individuals based on the remit of our work. Supporting a case does not mean we agree with the views or actions of the individual. Content published on CAGE may not reflect the official position of our organisation.)