Anonymity Is Not A Crime

The prospects for freedom and liberty in this country have developed for the worse since the General Election – and I say that as a Conservative. The Intercept Modernisation Programme (IMP) was controversial enough that the Labour Party suspended its development. Something had to be pretty bad before Gordon Brown’s cabinet thought it too authoritarian to go ahead, but plans to retain details of everyone’s telephone calls and e-mails were a step too far even for them. Both parties now in Coalition made pre-election commitments to reverse the rise of the “Surveillance State” and pledged in the Coalition agreement to “end the storage of internet and email records without good reason” – the last three words being the clause by which, supposedly, a prompt reversal is justified.

Buried in the Strategic Defence and Security Review, the Government “revealed” plans to introduce: “a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain communication data and to intercept communications

So IMP is back with us. After a brief interruption of service caused by the election, our bureaucratic masters are right back on track. Couple this with the disgusting u-turn on the Summary Care Record (SCR), the monolithic database of everyone’s health records, being constructed despite similarly clear and concrete promises, and a deeply troubling picture emerges. It is fascinating and dreadful to see the speed of bureaucratic capture, the reversion to bureaucratic authoritarianism on show within this government.

The IMP will allow the security services and the police to spy on the activities of everyone using a phone or the internet. Every communications provider will be obliged to store details of your communications for at least a year and obliged in due course to surrender them up to the authorities. The authorities will be able to track every phone call, email, text message and website visit made by the public on the absurd pretext that it will help to tackle crime or terrorism.

I debated the IMP with a policeman on Sky recently. He suggested that I simply didn’t understand how useful it would be for the state to have details of all our telephone calls and e-mails. On the contrary – I’m sure that it would be useful. It might be useful if one had to register one’s movements with the police, or observe a curfew. Usefulness to the state is not the only measure by which we measure public policy, and we must never allow it to be the only measure by which we measure public policy.

Moreover, consider what IMP represents – the effective reversal of the presumption of innocence, the entitlement of members of the public, absent the suggestion that they’ve done anything wrong, to go about their business without being treated as a suspect.

Not only are these things a gross infringement of freedom and liberty, not only do they reverse the presumption of innocence, but they don’t work even on their own terms. If you’re trying to find a needle in a haystack, stop growing the haystack.

Whilst this is the worst such intrusion, it is not the only one. Stop and search without reasonable suspicion is another. Figures this month revealed that over 100,000 people were stopped and searched under these powers (a dramatic decline in the number of such stops). Number of terrorists caught? Prosecuted, or even charged? None. Just like the year previously.

This is no surprise. Rather than a genuine counter-terrorism tool, random stop and search has been a way of bullying and hassling our increasingly abject population, and demonstrating who’s in charge. We have to decide what kind of society we want to live in. Random stop and search allows the state to confront the individual in the street, without cause, and demand your papers. Where are you going? Who are you going to see there? What’s going to be said or done? Your freedom of movement, your freedom of association, your freedom of speech – all injured by random stop and search.

One must say in defence of the Coalition that the power to stop and search pedestrians at random in this country has been suspended for the present – but the power to randomly stop and search vehicles continues. So when the statistics on searches are next announced, I fear that we will see that that most put-upon of groups in modern society – motorists – persecuted yet more.

Speaking of statistics on state intrusion, the so-called Office of the Surveillance Commissioner has now been in existence for four years, with a budget for which you and I might give our right arms. Said Office recently released their annual report into surveillance in this country. They announced that unlawful surveillance, surveillance of British citizens by the state which should never have been carried out, had gone up. After four years of his “work” at your and my expense, that which he is supposed to police is getting worse. I was on Radio 4 to discuss this, and opposite me was an empty chair – the Commissioner, who supposedly brings transparency to this area of public life, refused to discuss his own report in public. That’s how the state operates in modern Britain.

In any case, the commitment to build IMP demonstrates the complete absurdity of the establishment’s position on intercept evidence. Dominic Raab MP has written an excellent book, which can be downloaded from the Big Brother Watch website, called Fight Terror, Defend Freedom, which makes the point that the Government persists in refusing to allow the use of intercept evidence it has already collected to be used in court cases. That is to say, evidence that can be individually accumulated about a specific individual, which can be overseen and signed off by a senior officer or a judge or even a Minister, and held to objective standards, properly accountable evidence, is not to be used; but they do wish to have surveillance of all of us, all the time, just in case, when nothing’s been proven against you – it’s the wrong way round. It’s even the wrong way round on cost.

What has brought a Government, made up of parties which apparently wanted to reverse the rise of the surveillance state shortly before the election, to the position immediately after it in which it reintroduces plans for the IMP?

Here are some suggested factors:
• Wouldn’t it be useful, Minister – look what we can do! See how much more efficient our bureaucracy can be if we tie these things together! (Failing to consider whether it’s actually a good idea to allow the state to connect A [your telephone records, say] with B [your medical records] with C [your movements].)
• Now you’re a Minister, you’re on the “inside” – now, you can see the *real* information, the genuine files…
• Consider the costs of cancellation of the contracts we have in place (a serious factor in the u-turn on the SCR).

Not only are these bad times; furthermore, this is the high point of the commitment to freedom. Things will only going to get worse:
• The pressure of everyday events (like the Yemeni bomb plot which, let us not forget, was uncommon and was thwarted) which produce kneejerk reactions
• The need to be seen to be doing things (the notion that there is an element of risk in life which cannot be eliminated, the idea that Government shouldn’t try to do everything, are thoughts entirely absent from our public discourse).
• The “terror threat” which dominates the agenda in the United Kingdom – before which we seem perpetually to bow whenever it is cited.

For these reasons, the fact that the Government is holding all these reviews (into stop and search, control orders, 28 day detention, CCTV, Automatic Number plate Recognition, the DNA database) isn’t an opportunity for freedom, it’s a disaster, allowing issues to be “long grassed” so that great delays in any action at all are in place, and then an alternative (invariably authoritarian) course from that promised at the election can be taken. If something is to be done, it needs to be done quickly – as with ID cards for British people – albeit not for foreign nationals.

We should touch on Control Orders, under which you’re not anonymous, but your accuser is. There are now nine people on Control Orders in the United Kingdom. There have been forty-five to date (of whom, seven have absconded!). They are based on an assertion from the Home Office that there are some known 2,000 people actively supporting terror in the country – of course, we can’t prove anything against you, but we know you’re up to no good – and a further 2,000 “known unknowns”; in a highly scientific fashion, the Home Office asserts that there’s the same number again of people they can’t identify, but are terrorists or supporters too. Let’s assume that’s all correct – 4,000 people, of whom 45 have ever been the subject of Control Orders. Plainly, it’s absurd.

It is a standing affront to the rule of law that, without charge, anyone’s liberty is curtailed – their freedom of movement and association are limited to the point at which they are, essentially, under indeterminate house arrest. That freedom is curtailed not only without charge, but without even knowing the nature of the allegations against them, let alone the details of those accusations or the name of their accuser – it’s truly Kafka-esque. The fact that it happens to a tiny proportion of people does nothing to justify it; if you are not free, I am not free. Once these things can happen in principle, they can happen to any of us – especially when there is no objective standard to which the state must be held or test the state must pass in order so to control you.

None of these people, against whom nothing to the criminal standard has been (or presumably, can be) proven should be on these orders. Each time a case actually goes to court, the Government loses and another such order falls. Control Orders should be abandoned immediately, rather than defeated on an ad hoc basis as the Government loses case after case. It is unjust enough to limit the liberty of a person in this way – but to continue to do so, knowing that the case will be decided against the Government when it wends its way to court, but keeping them so ‘controlled’ until then, is morally bankrupt. It entails further months of unjustifiable action in each case, simply on the basis of which gets to see the inside of a courtroom first. How can that be intellectually or morally justified even for a moment? The Liberal Democrats explicitly pledged to scrap them. They should have their way.

Four further examples:

Covert surveillance by local councils (under the Regulation of Investigatory Powers Act or otherwise) – many are surprised to discover that the power to conduct covert surveillance rests with local Councils, who can authorise themselves to mount surveillance of their residents – and do so, regularly. Big Brother Watch identified over 8,500 separate operations in the past two years. It’s just what you think it is – hidden cameras, a man in the bushes, watching from a stake-out or a parked car – the man from the Council who thinks he’s James Bond, a bureaucrat on steroids. It’s not for the serious crimes or terrorism people thought the legislation was for – it’s for putting your bins out at the wrong time, for dog fouling, spying on council employees, for breaking the smoking ban, for littering, for noise nuisance. If true, the things being investigated are wrong, but they don’t justify covert surveillance – it’s entirely out of proportion. The cure is worse than the disease.

Such issues can be solved without such excessive powers; since 2007,Bradford Council has disowned these intrusive tools; instead, they write to people saying, we’re going to investigate (for example) a noise nuisance complaint in your area (I suppose this is ‘overt surveillance’). Unsurprisingly, compliance goes up – so, even without reference to privacy, just in terms of success, these powers are unnecessary. Surveillance powers should be removed from local authorities altogether: if an offence is serious enough to warrant covert surveillance, it shouldn’t be in the hands of councils – it should be with the police. If not, then innocent victims of it should have right to know that they were watched, a right you currently don’t have (so it’s not scaremongering, but simply stating the obvious, to say, it could have happened to you). It would change the whole culture of surveillance if those conducting it knew that their actions would have to be justified to their victims. There should be a requirement for a councillor to sign off on the surveillance, so that there is at least an element of democratic accountability in the process. Furthermore, councils should be required to obtain a warrant before conducting such surveillance. A promise to that effect on the last point was specifically made in the Conservative Party’s manifesto – nothing has yet been done.

CCTV – a reversal of presumption of innocence Our report into CCTV showed that the number of council-run CCTV cameras has trebled in the last ten years. That’s working off a high base: a decade ago, people were already alarmed by the extent to which we were being watched – the network has trebled since then. Our report doesn’t reflect the large number of cameras held by others – by Transport for London, by Government ministries, or in private hands. So the true figure is really very high.

It matters because CCTV cameras are not good in and of themselves. To be worth paying for, they have to help to prevent or help to detect crime. If they don’t do either, then they are worse than useless – people feel a false sense of security because of them, policing techniques are increasingly reliant on them, they cost a lot and they intrude on privacy.
Cameras are often not working or turned off (as happened in an unpleasant beating in Somerset) or pointing in the wrong direction – all are much worse than them simply not being there, as law enforcement becomes dependent on an unreliable resource. When they’re working and turned on and pointing the right way, footage is often scrubbed before law enforcement officials collect it. When it’s working, turned on, pointing in the right direction and not scrubbed, the quality of footage is often such that courts cannot use it. They let people down all the time.
There have been forty-four proper studies of CCTV: taken together, they show that crime is not driven down by CCTV (with the exception of a marginal benefit to safety in car parks). That was confirmed by a recent Metropolitan Police report, which stated that one crime per year was ‘solved’ per thousand cameras. I’m not a Luddite. Technology has a role to play in law enforcement. There are specific cases you can point to where CCTV has helped – but against those must be weighed the millions of man-hours and millions of pounds that get pumped fruitlessly into cameras, and the harm done to society by the presumption of guilt implied by monitoring everyone all the time.

The public purse offers finite resources, and money spent in this way is money that cannot be spent on other forms of policing, such as officers on the street. It’s a question of balance. We’re the only country that’s gone so far down this path. The Shetland Islands has more CCTV cameras than San Francisco Police Department.

Even putting the occasional cases of outright abuse of the network, there are obvious privacy issues raised by CCTV which usually go ignored, but shouldn’t. People are increasingly concerned by the capture and retention of the images of innocent people without their consent. Part of society is unambiguously private, like bedrooms (sometimes intruded into by those who run CCTV, but in principle private). Part of society is unambiguously public and needs to be monitored, for example customs areas at airports. There is an argument taking place about what happens in the rest. Some think it’s OK in principle to record the rest, all the time, just in case. I don’t. That goes too far.

One of course has to rebut the facile ‘nothing to hide, nothing to fear’ – the reverse should apply in a free society. If you have done nothing wrong, why should the state record your whereabouts and what you’re doing? If you think that if you have ‘nothing to hide, nothing to fear’, that privacy has no place in the discussion of CCTV, then you will note that the largest proportion of violent crime in this country is domestic violence in one form or another – and you won’t mind having a camera in your house. If you’re not doing anything anti-social, you won’t mind having an ASBO. If you’re not doing anything criminal, won’t mind a curfew. If you have nothing to hide, why do you have curtains? Anonymity is not a crime.

CCTV is being used in this country to monitor and identify peaceful protesters. Surveillance is being conducted on a routine basis of those exercising democratic rights of protest – freedom of assembly, speech, movement.

We are also building up a data set of personal information which is valuable and open to future abuse (especially given the rapid development of facial mapping). Only a fool would presume that all people in all future governments and all those in power in future times will be benign.

NICE database efforts The so-called National Institute for Health and Clinical Excellence is the classic example of C.S. Lewis’ dictum that “of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.” Last year, NICE announced that they wanted to build a database of every household in the country with someone under the age of 15 in it, so that they could “accident-proof” it – does this plug need a cover, is this table poorly finished, might someone trip on these stairs? They were laughed out of court, so they’ve tried again this year on the basis that they only want it for households with children under 5. It’s all for your own good, of course. And of course you can refuse entry to the home, it’s only voluntary – but what would it say about you if you refused to let us help children? That should put you on a new database of concern, no doubt…

The European Arrest Warrant and accompanying European Investigation Order let ill-trained police from any European Union country arrest British people for trivial offences or “crimes” that aren’t even against British law.

This isn’t just a theory. It has happened – many times – to British people and people resident in Britain. Patrick Reece-Edwards, from Dartford, spent several weeks in jail on an EAW after Polish prosecutors sought his extradition on charges of possessing a forged motor insurance certificate.

Dimitrinka Atanasova, a Bulgarian legal secretary, fled to Britain after threatening to expose her boss (the chief prosecutor) for misconduct. Britain, of course, has a proud heritage of sheltering those fleeing from oppression – a heritage we did not live up to in this case. The very same chief prosecutor personally requested Atanasova’s extradition from Britain on what a British judge agreed were “bad-faith” (trumped-up) charges. Crucially for her, her case predated Bulgaria’s EU membership and adoption of the EAW so ultimately she was freed, but only after she spent several months in Holloway Prison. <br
>Edmond Arapi, a Staffordshire waiter, was seized under an EAW issued by Italy after being sentenced to 16 years in absentia for a murder in Genoa in 2004. Yet he never left Britain in 2004. He spent time in Wandsworth prison before the Italians finally admitted it was a case of mistaken identity.

In each case, the scenario is the same – someone in Britain is wanted by a foreign power. That country has made a mistake (or worse) – but we arrest and imprison the person concerned.
The EIO is intended to make it easier to gather evidence on another member state’s soil. Amongst other things, it would grant foreign police the right to carry out ‘real time’ interception of communications, monitor a person’s bank account, demand bodily samples, DNA or fingerprints from a person in another EU state. They would be able to order British officers to conduct undercover-spying missions, and pursue people for ‘crimes’ not recognised in UK law, like the Portuguese offence of criminal defamation.The countries able to wield the new powers include states like Bulgaria, Romania and Greece (which has been the source of the worst example of the EAW yet, the case of Andrew Symeou). It is not racist to point out that the notion that such countries have justice systems of equivalent quality of our own is farcical.

Tory MP and Big Brother Watch author Dominic Raab raised his concerns in the Commons:
“Britain should not opt into this half-baked measure. It would allow European police to order British officers to embark on wild-goose chases. It would force our police to hand over personal information on British citizens, even if they are not suspects and the conduct under investigation is not a crime in this country. And it gives foreign police law enforcement authority on British soil… it will waste police time and ditch safeguards that UK citizens expect from the British justice system.”

Fair Trials International points out that under the EIO, the Spanish police investigating a murder in a nightclub could demand the ID of every British citizen who flew to the country in the month the offence took place. They could force the UK to search its DNA database – which contains the profiles of nearly one million innocent people – and send the Spanish police profiles of anybody on the database who was in Spain at the time.

None of this even requires sign-off from a judge. Not only does the EIO allows any EU police force to start investigations and gather evidence on UK soil, no judicial authority is needed to verify whether there are reasonable grounds for believing an offence to have been committed. In this country the police can’t investigate on a whim, they have to have reasonable grounds to believe that someone is up to no good. Potentially, a corrupt police officer in the pay of the Mafia in Southern Italy, could come to the UK and obtain your DNA and bank balances without obtaining permission from a judge.

These powers are bad for justice and bad for the standing of the European Union. They should be scrapped.

This is an edited version of a speech given at the Libertarian Alliance Conference, 30th October 2010 by Alex Deane, Director of Big Brother Watch (http://www.bigbrotherwatch.org.uk) and a former Chief of Staff to David Cameron.

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