Category Archives: Law

State Snooper’s Ignore Our Legal Privileges

007 POL snoop

Pol Clementsmith on why the rule of thumb overrides the rule of law in the latest revelations surrounding the illegal activities of our snooper secret services.

The UK government has conceded that it may have breached the European Convention on Human Rights (ECHR) by secretly intercepting legally privileged communications between lawyers and their clients. This intelligence gathering, by our unelected security services, which has been going on since 2010, might also have been used to prepare the government’s own legal defence against the very people who are suing them.

Lawyers for a Libyan politician, Abdel Hakim Belhaj, who was abducted in a joint operation by the CIA and MI6 are currently suing the UK Government over his rendition back to Libya in 2004. Belhaj and his wife, Fatima Bouchar, were secretly flown to Tripoli, along with Sami al-Saadi and his family, where they were tortured by Muammar Gaddafi’s security services. It is also believed that British intelligence officers took part in these interrogations.

The government’s concession, which is as damaging as it is embarrassing, follows on from another investigation by the Investigatory Powers Tribunal (IPT) who recently concluded that the regulations covering the retrieval and retention of our private emails and phone conversations, intercepted by the US National Security Agency (NSA) and by Britain’s communications intelligence agency (GCHQ), were also a breach of our right to privacy.

The civil liberties group Reprieve has revealed, in papers passed to them, that our intelligence services have accessed sensitive and legally privileged communications between lawyers and their clients and may have used this normally protected information to prepare a case against them. Communications between lawyers and their clients enjoy a specially protected status under UK law.

Government sources are refusing to confirm or deny whether the Libyans were the subject of an interception operation. They insist the concession does not concern the allegation that actual interception took place and say it will be for the IPT to determine the issue.

Rachel Logan, of Amnesty UK, stated that: “We are talking about nothing less than the violation of a fundamental principle of the rule of law – that communications between a lawyer and their client must be confidential.

MI6 office pol

“The government has been caught red-handed. The security agencies have been illegally intercepting privileged material and are continuing to do so. This could mean they’ve been spying on the very people challenging them in court.”

Cori Crider, a director at Reprieve and one of the Belhaj family’s lawyers said: “For too long, the security services have been allowed to snoop on those bringing cases against them when they speak to their lawyers. In doing so, they have violated a right that is centuries old in British common law. Today they have finally admitted they have been acting unlawfully for years.

“By allowing the intelligence agencies free reign to spy on communications between lawyers and their clients, the government has endangered the fundamental British right to a fair trial.

“Reprieve has been warning for months that the security services’ policies on lawyer-client snooping have been shot through with loopholes big enough to drive a bus through.”

A government spokesperson said that: “The concession the government has made today relates to the [intelligence] agencies’ policies and procedures governing the handling of legally privileged communications and whether they are compatible with the European convention on human rights.

“In view of recent IPT judgments, we acknowledge that the policies adopted since 2010 have not fully met the requirements of the ECHR, specifically article 8 (the right to privacy). This includes a requirement that safeguards are made sufficiently public.

NSA Pol“It does not mean that there was any deliberate wrongdoing on the part of the security and intelligence agencies, which have always taken their obligations to protect legally privileged material extremely seriously. Nor does it mean that any of the agencies’ activities have prejudiced or in any way resulted in an abuse of process in any civil or criminal proceedings.”

Cori Rider believes that: “It looks very much like [the government] has collected the private lawyer-client communications of two victims of rendition and torture, and possibly misused them.

“While the government says there was no ‘deliberate’ collection of material, it’s abundantly clear that private material was collected and may well have been passed on to lawyers or ministers involved in the civil case brought by Abdel hakim Belhaj and Fatima Boudchar, who were rendered to Libya by British intelligence.

“Only time will tell how badly their case was tainted. But right now, the government needs urgently to investigate how things went wrong and come clean about what it is doing to repair the damage.”

The actions of our security services are a clear violation of Article 8 ECHR and subsequently Article 6 ECHR (the right to a fair trial). How is anyone supposed to mount a robust defence or a strong prosecution against this kind of government sanctioned eavesdropping?

The goal posts of legal privilege have been moved to a secret location. Our government is no longer operating within the rule of law. Do not phone, or take calls from, your lawyer. Never email them. Always meet your brief on a secluded park bench. If you do have to venture into your lawyer’s office use only coded gestures and prearranged signals. This may currently be the only way to ensure that your privacy isn’t breached.

Heads down, thumbs up, eh

Digital Rights and Wrongs

Pol Clementsmith argues that where the principles of free speech, privacy and responsible anonymity are concerned, an open web, free from legislative back door snooping, is an essential digital right.

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The first widely known document concerning the protection of a class of people against interference from the State was the Magna Carta. This year is the 800th anniversary of the signing of the Great Charter in 1215 after King John’s defeat at the hands of some of his more rebellious Barons. However, as soon as John was a sword’s length away from the negotiating table he immediately petitioned Pope Innocent III who, upon realising the potential power of the document to unseat autocrats, of which he was undoubtedly one, absolved John of any duty to observe the terms of the document, accepting the King’s pleading that he had been cajoled into stamping the document under duress.

Lord Denning has described the Magna Carta as “the greatest constitutional document of all times […] the foundation of the freedom of the individual against the arbitrary authority of the despot”, and whilst the Magna Carta has been hailed as the inspiration for much of today’s citizen rights’ legislation (including America’s Declaration of Independence, the 1791 Bill of Rights and the Declaration of Human Rights in 1948), it was never actually signed at Runnymede. King John merely put his seal to it. It then went through so many edits, additions and revisions that it became a much altered, skinnier version of itself only becoming statute in 1297, a full eighty two years after its inception.

Fast forward nearly 800 years and we find ourselves at the opposite end of the law making spectrum where legislation-stuffing, often carried out at breakneck speed, is the new normal. Legislation aimed squarely at allowing the State to steamroll over our human rights with the noble aim of protecting us from the war on terror.

Following on from reaction to the recent attacks in Europe, we have witnessed yet another assault by our own Palace of Westminster on our right to online privacy. A House of Lords debate on the inclusion of the Snooper’s Charter into the waistline of the already bulging Counter-Terrorism and Security Bill (CTSB) has, for the time being, delayed the ongoing erosion of our right to communicate freely online and without fear of state intervention.

Four senior cross-party peers led by the aptly named Lord King launched a last ditch attempt (carved up as eighteen pages of amendments to the CTSB), to reintroduce the Snooper’s Charter before the general election which would allow our security services unbridled access to everyone’s web and phone use.

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The Open Rights Group has stated that the amendments contain a “series of threats to [our] digital rights” and are “nearly identical” to the failed draft Communications Data Bill of 2012 (the original Snooper’s Charter) which was rejected by a parliamentary committee who concluded that it was woefully inadequate legislation.

In supporting these reheated amendments, Lord King criticised those who called the measure a snooper’s charter as trading in “sanctimonious claptrap”, stating that, “we could easily see a Paris or a Belgium [attack happening in the UK]”. He then went on to expound that he was no “master of the internet”, and that, “I am not a Twitterer. I don’t know about Snapchat or Whatsapp, but the terrorists do…”.

King’s statements not only show his inability to understand the basic tenets of online communication but they expose his readiness to legislate the latest sound bite laws, like David Cameron’s impractical threat to ban encryption, without due care and attention to the fact that encryption is used everyday in thousands of transactions which keep us safe online and actually protect people who live under authoritarian regimes from torture and oppression. King eventually withdrew his amendments but added that he was likely to press the issue to a vote at next week’s report stage of the bill. We can only hope he didn’t Snapchat his intentions to the PM.

We have also witnessed similar sound bite scrambles by other European member states to allow greater access to our private communications by intelligence services – but last year the ECJ ruled that the controversial Data Retention Directive (DRD) was invalid citing an invasion of privacy by the State. Brought in to allow member states to compel communication service providers (ISPs) to collect and retain sensitive personal data, the DRD has been judged to contain a “wide ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data”.

The parliamentary assembly of the Council of Europe has also stated, in a recent report on mass surveillance, that existing British laws, which give MI5 and GCHQ wide-ranging powers to monitor our communications, are incompatible with our human rights. It argues that British surveillance may be at odds with Article 8, the right to privacy, Article 10 the right to freedom of expression and Article 6, the right to a fair trial.

The Electronic Frontier Foundation also shares my concern that in the wake of terrorist attacks, “we see governments moving swiftly to adopt new laws without consideration of the privacy rights being sacrificed in the process.” It is this swiftness to legislate-at-all-costs, as displayed in this week’s House of Lords debate that we should keep a weary eye on.

King John 1Meanwhile, the inventor of the world-wide-web, Tim Berners-Lee, believes that we need an online Magna Carta to “protect and enshrine” the independence of the medium he created and one that we all enjoy using today. His plan is part of an initiative called the Web We Want. It is asking for people to create a digital Bill of Rights in every jurisdiction; a statement of principles that would be supported by government officials, public institutions and corporations.

An outspoken critic of US and UK spy agency activity, in the wake of the Edward Snowden leaks, Berners-Lee has stated that, “unless we have an open, neutral internet we can rely on without worrying about what’s happening at the back door, we can’t have open government, good democracy, good healthcare, connected communities and diversity of culture.”

When the Magna Carta was eventually made into statute it had gone through a series of changes which reflected the ongoing aspects of the Barons and the Monarch’s needs. Thankfully, the most important sections, originally numbered 39 and 40 at Runnymeade, were retained and these have gone on to form the basis of the most important human rights legislation we now enjoy today:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

As Tim Berners-Lee insists, “It’s not naive to think we can have [a digital Magna Carta], but it is naive to think we can just sit back and get it.”

J.K. Simmons is on holiday.