Monday, 10 October 2016

Next it will be burning books

I really am losing the plot here - what the hell is happening with this country?

The idea of listing foreign employees to "name and shame" employers was crazy, and then the back peddling was crazier still. They suggested they would, instead, be secret lists - but that does not fit with "shaming". Now an MP has confirmed now that companies should "look first at the British labour market and offer jobs to British people before importing labour from abroad” which is something that would be illegal under British law (Equality Act 2010). Race discrimination includes discrimination on "nationality".

Now we have a crazy case of someone accused of researching and teaching encryption!

Well, I do that, see this video! I could get arrested!



So what next? actually burning books on encryption?

I can seriously see the need to find a new country soon. FaceBook group started. Feel free to join and contribute.

Update: Some people have sensibly pointed out that the person in question in the case of researching and teaching encryption is primarily suspected of being a member of ISIS and then these other charges are tacked on. However, please do read the comment below from RSchu11 October 2016 at 07:49 who explains that there is an offence of simply being in possession of things that give rise to suspicion. I.e. there is no need for prosecution to prove you were actually involved in terrorism or planning of terrorist acts, just that you gave rise to reasonable suspicion - that is the offence in itself! You then have a defence if you can prove you are have an innocent reason for possession - reversing the "innocent until proven guilty" principle we all expect. That really is unacceptable!

24 comments:

  1. Personally, I think the reports of the offences linked with encryption / using Linux have been reported in a rather overblown manner.

    The arrests were related to the terrorism, not the particular technologies / devices being used. The same arrests could have been made in respect of someone making notes using pen on paper, or a feather dipped in berry ink writing on tree bark, if they amount to "[engaging] in any conduct in preparation for giving effect to his intention ... to [commit] acts of terrorism."

    In the same way, sitting around in an office with others could be prosecuted under the "training" offence: it has nothing to do with using https on a blog.

    In a different context, driving a car is not illegal. Driving without due care and attention is. An equivalent report would be saying "man arrested for sitting in a car". No. Man arrested for driving without due care and attention.

    There are, I'm sure, plenty of circumstances where this kind of scrutiny and criticism is deserved. In this case, I'm far less convinced, and it seems as if the particular technology involved is skewing the story quite badly.

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  2. Facebook? Really?

    As for emigration:

    Americans shoot you;
    Canada's cold;
    Germans will boot you;
    The Swiss want gold;
    The Dutch aren't lawful;
    Japan is grey;
    India's awful;
    You might as well stay.

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  3. I suspect you've not yet read the two sections under which he's charged. They require "intent" and "purpose". IANAL, but I'm 100% sure that conviction would require proof of intent to commit a terrorist act, and/or proof that his purpose was to commit same.

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  4. Ha - you mention Equality Act 2010 as making the proposed discrimination illegal, but doesn't this act stem from EU directive(s) ? So perhaps we'll be doing away with it before long...

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    1. EU legislation comes in many flavours. This is not a direct EU law or a regulation but a primary UK Act, so the last to go under any Brexit crap.

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  5. I am a lawyer, so let me try and shed some light on this.

    Researching and teaching encryption or possessing a USB drive with a bootable OS are not, as such, offences under the Terrorism Act 2000.

    It is actually worse.

    Collection of ANY information or possession of ANY item can be an offense under the Terrorism Act 2000.

    Section 58: "A person commits an offence if information of a kind likely to be useful to a person committing or preparing an act of terrorism."

    Section 57: "A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism."

    The issue here is the incredibly broad scope of these provisions, and the reversal of the burden of proof.

    For example, researching the performance of cars could be useful to commit acts of terrorism (getaway cars, using vehicles to ram a target etc.). So anyone researching cars could be charged under Section 58. It would then be up to the accused to provide that they were not researching cars for the purpose of terrorism.

    Section 57 is even worse. Possession of any article in circumstances which give rise to a reasonable suspicion that the possession is for a purpose connected with terrorism is enough to be charged. Note that causing a reasonable suspicion is enough to have committed the offence. Again, it would be up to the accused to prove his innocence. Needless to say, almost any article of daily life could somehow be said to give rise to suspicion that possession of the article may be in connection with terrorism. In other words, the authorities could arrest anyone possessing any article (i.e. anyone who is not walking around naked) under Section 57, claiming that he aroused suspicion, and then it would up to the accused to prove his innocence.

    These two innocuous provisions of the Terrorism Act provide the means for the state to arrest and charge anyone. Of course the usual line of argument is that the authorities will not abuse such wide powers. We have already seen that this optimistic assumption is false. Do we really want to put our trust in the police and Crown Prosecution Service to not abuse extremely broadly defined criminal offences?

    The UK is sliding slowly into a police state akin to East Germany during the Cold War, and the UK population is largely oblivious to it.

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    1. He's not charged under §58. And no Act can override the courts' presumption of innocence.

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    2. Well it can - if it makes simply "giving rise to reasonable suspicion" and offence in itself, the police can "prove" that you were "suspicious" almost by the very fact they decided to stop/search you. In that case you are guilty, proved. You then have to use the "defence" clause which allows you to "prove your innocence" in effect to override that. So I think that law is doing exactly that.

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    3. You might also bear in mind s49 RIPA in contemplating this kind of thing: if you are served with a s49 notice, requiring you to decrypt protected information or disclose the key, if it can be shown that you were in possession of a key to that information at *any time* before the notice is given, you are deemed to continue to be in possession of it, unless you can prove that it was not in your possession after giving the notice and before you were required to disclose it (s53 RIPA). Proving a negative is very difficult.

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    4. Yes, that is worse, not only reversal of burden of proof, but expectation that you can prove a negative!

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    5. Though in such a case I would ask the judge "can you prove you do not have the key please?" and if not able to, explain the impossibility of what is asked.

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    6. Although bear in mind that, generally, one doesn't get to ask the judge such questions! And even if you did, I suspect the answer would be "s53 requires you to demonstrate that you were not in possession of the key for the period in question. It has never been shown that I have been in possession of such a key, and so my position is irrelevant. If you cannot prove that you did not have the key at the relevant time, I have no choice but to find you guilty."

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    7. It is correct that in this particular case, the individual is not charged with Section 58.

      But both Sections 57 and 58 do reverse the presumption of innocence. The defendant has to prove his innocence, see section 57(2) and 58(3) TA 2000.

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    8. But no Act can override the courts' presumption of innocence.

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    9. You say that, but as per Neil's comment. Law says not handing over a key is an offence - so you go to court, presumed innocent. Prosecution says "didn't have over key", and as such have *proved* you guilty. You now have to somehow prove you don't have the key, which is essentially impossible. So basically same thing as overriding presumption of innocence.

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    10. Put it like this - access FaceBook. You use https. You had in your possession at that point in time a private key for that TLS session (it was on the computer you were controlling). That is an easily provable fact - logs will show you logged in, and/or read/posted something on FaceBook, and you may even admit to having accessed FaceBook. So that is proof you used encryption and had in your possession the necessary private key. So lets say they have a capture of that TLS session, and want it decoded. They can ask you for the key. You don't have it over. You are basically guilty of a crime now unless you can prove you don't have it. Go ahead - give that a try?

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    11. I think I see the misunderstanding here, Adrian. You're saying "the law" but what you're referring to is an Act of Parliament. The two aren't necessarily one and the same -- especially in the case of Acts where the wording is... let's say "stupid".

      The law is a combination of common law, Acts, regulation by reference, prerogative orders, statutory Instruments, other forms of delegated legislation, and judicial rulings that set precedent. It's that final item that tends to change the law to something different than a "stupid" Act.

      Stupid Acts can happen because of stupid politicians ("something must be done; this is something," etc.) -- especially when they ram it through without listening to the Lords. So when a case relying on stupid language arrives before a suitably senior judge, the law effectively gets modified (although this may require one or more rounds of appeal).

      To misquote Churchill, it's the worst form of lawmaking, except for all the others.

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  6. Parliament can write whatever words they like into a law. But it takes more than a mere Act of Parliament to change a legal system that's enshrined over centuries.

    I agree these sections are problematic, but the sky is not falling. Unless of course someone can point to an individual actually convicted because, "Well, y'know, he seemed a bit terroristy."

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    1. > it takes more than a mere Act of Parliament to change a legal system that's enshrined over centuries.

      Not really — it took just one series of Act to make sweeping changes to the centuries-old legal system here: the Acts of Judicature, in the 1870s.

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    2. Not really the same thing. My point is that just because an Act says something stupid, that doesn't mean it binds the Courts to do stupid things, although an appeal to the Supreme might be required. And in the final event, the ECHR wouldn't stand for it.

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    3. If we accept then that an Act of Parliament can indeed change the legal system — as it has done — there is perhaps a question as to the extent to which Acts which purport to interfere with fundamental rights are, in fact, able to do so.

      Many pieces of legislation limit fundamental rights, and have been upheld by domestic courts — and, in some cases, appealed to European courts, and not struck down there. As a number of fundamental rights explicitly contain frameworks for interferences / derogations, an interference with a right per se cannot be unlawful.

      On the precise point of whether a piece of legislation which appears to change the burden of proof is compatible with fundamental rights — which was your starting point, I think — and would be struck down on appeal, Article 6 ECHR provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

      However — and I am not sure which particular piece of legislation we are talking about here — I suspect that the government would (perhaps someone has; I'm not well read in case law on this area) argue that the "according to law" element means that freedom is afforded to states to determine quite what needs to be proven for someone to be guilty of an offence. If the state can prove that someone was guilty of the constituent elements of the offence, then the burden of proof has not been reversed: guilt of the offence, as set out by the law, was proven, with the starting point of innocence.

      Perhaps it would fail. Perhaps it has already failed (perhaps there has been a case on this). But it seems like there could be arguable ground here?

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    4. Neil, I bow to your greater knowledge. But my starting point was a simple observation that the press release says the alleged terrorist was charged under §5 of the 2006 Act, which requires "intent", and §57 of the 2000 Act, which requires "purpose".

      I see people jumping to conclusions that the Acts theoretically mean one has to prove one's innocence, yet that supposed meaning has never been tested by the Courts, has it?

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    5. I honestly don't know, I'm afraid. And I'm not sure it is the legislation at issue here, as you say, so perhaps we won't find out from this case either!

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    6. At least for now there's still a court case, rather than the suspects simply being disappeared the way they would be in the USA.

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