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Guilt by association


The draft Bill was published at lunch-time today. The document is almost 300 pages long and I have not begun to look at the detail. But the two essential points are clear.

First, Theresa May has grasped that she cannot get the Bill through Commons or Lords without granting more oversight to the judges, so there is a gesture in that direction. I am currently unclear whether it is a fig-leaf or a serious concession. I will write further on that when I have digested the 300 pages rather better.

Second, the powers on “communications data” have been strengthened and are currently an outrageous and dangerous assault on a democratic society.

Let us go back to fundamentals for a moment. Few crimes or acts of terrorism are solo efforts. They almost always involve more than one person. So if X is a suspect it is a big help to the police and security services to be able to find out all the people X is communicating with. Some of these, like the local greengrocer, may be wholly innocent, but some may well be co-conspirators – always assuming of course that the police/security services are correct in their suspicions about X.

Clearly this approach has its drawbacks. The most famous case was Denning’s judgment on the “Birmingham Six”. They had been arrested because they were the “usual” suspects. There had not been enough evidence to get a conviction so the relevant Regional Crime Squad had committed wholesale perjury to manufacture additional evidence. No doubt they had done so because they were convinced that the suspects were indeed guilty and that the public would benefit greatly from getting them behind bars.

That, of course, is the road to creating another Stasi – the “most effective and repressive intelligence and police agency to have ever existed”.

Clearly if I am a terrorist suspect, it would help the police/security services to know exactly whom I meet in person every day. So why not require everyone in the UK to email the police every day with a detailed list, and jail defaulters? Of course, I might slip messages to someone on a crowded tube platform, so a simple list of meetings is not enough. Better to require everyone to strap a camera round their forehead and send the feed live to GCHQ together with the GPS/Wifi location data.

Any such proposals sound completely ridiculous and would be dismissed as wild right-wing fantasies.

So why do people think it is reasonable to force the phone companies, email companies and internet service providers to store details of all my online contacts for a year?

It isn’t. It is highly dangerous.

There are three critical factors which people are missing when they think that sounds a good way of stopping us all being blown up by terrorists.

(A) the terrorist threat is insignificant. It is overblown nonsense, whipped up by the media. Far more people are killed by the police driving badly in response to 999 calls than by terrorists;


(B) the security services are not like their Hollywood/TV counterparts. They are much closer to the Keystone Cops. Sure, occasionally evil guys in the security services will follow the standard anti-CIA Hollywood plot, but the main problem will be the incompetent mass of guys who just blunder around making the lives of the innocent miserable in the mistaken belief that they are protecting the public from harm;

(C) the impact of Big Data and instant access. Few laymen and fewer politicians seem to grasp the problem with massive computerised databases. In the old days records took the form of pieces of paper in metal filing cabinets scattered all over the place. Searching them was a major hassle, which meant that the cost of accessing them was huge and it was only done when absolutely necessary. Even then, you limited your access as far as you possibly could. You didn’t go on fishing expeditions.

All that changes when all the records are on a central computerised database. Then you can search through all the records in seconds. Moreover your searches can be much more elaborate. You can search for some combination of five ordinary everyday innocent characteristics which you think might characterise the suspect you are looking for. Have we already forgotten the Snowden revelations?

Software for searching communications data is now extremely sophisticated. The upshot is that if you happen to have innocently rubbed up against someone on the current list of say 5000 major UK terrorist suspects, the record of that contact can then be presented as evidence to justify moving to the next stage and start reading your emails, recording your phone calls and so on.

Maybe you feel that is fine. They will find nothing incriminating and quickly forget you.

There are three points there. One is that they may find something incriminating which is irrelevant to terrorism. What happens then? The UK judicial system has the bad habit of admitting inadmissible evidence, because the judges pay too much attention to doing justice in the particular case and not enough to influencing the future behaviour of the investigating authorities.

The second is that if you are engaged in a furious row with your neighbour about noise or his cat or whatever, he can easily wreak revenge by sending you emails from an apparently unconnected email account about the terrorist plot you are engaged in and then ringing the anti-terrorist hotline anonymously with some story about overhearing you plotting in a local coffee shop. If that was done skilfully, you could find yourself in considerable difficulties. You think that is far-fetched? Once the first case has been reported in the Sun, everyone will be at it.

Finally, the authorities will certainly not forget you. Computer filing space is essentially unlimited and free. So the unproven material will remain on file to bite you later.

Oh, Theresa May will say that all the draft Bill is doing is tidying up the existing powers. The police can already access your phone records without warrant to get the communications data. Yes they can, and it is time to stop them.

Added Later

It emerged around midnight that GCHQ has been storing the communications data on all UK phone calls for at least the last ten years. Reading the BBC article carefully and listening to the Today programme this morning, I am not clear whether this has been confirmed by David Anderson. I had little time for Alex Carlile, Anderson’s predecessor, who seemed to see it as his job to reassure the public that whatever the security services got up to was fine and fully justified by the terrible threats we all face. David Anderson seems to be doing his job rather better.

Of course, this news is totally unsurprising. See for example my earlier articles (here and here).

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