High Court smacks down 'emergency' UK spy bill as UNLAWFUL The High Court has ruled that the "emergency" DRIPA surveillance legislation rushed through Parliament last year is unlawful. A challenge brought by MPs David Davis (Con) and Tom Watson (Lab), following the rushed passage of the Data Retention and Investigatory Powers Act 2014 (DRIPA) – which was sped through Parliament under …
Not a surprise, I called it on my blog days before it received royal assent :) Still very pleasant to hear.
Government reaction will be interesting. I'm sure they'll appeal. As it is though, the timescale for pushing through the new RIPA replacement was already tight, due to the December 2016 sunset clause in DRIPA. They now only have until March 2016. They were planning to introduce legislation through a joint committee of Lords and Commons in autumn this year - which only gives them 6 months - which is really not much time at all. And all the recent reports (ISC, Anderson, RUSI) recommended a major rewrite and replacement of both RIPA (+DRIPA) and other laws permitting surveillance/interception.
So, will they rush through a DRIPA replacement, keeping (or extending) the sunset clause, eating up legislative time in the process, or rush through the RIPA replacement, possibly reducing the scope in the process?
"the Government's hasty and ill-thought . . ."
They will rush it through but in the past couple of months they've not got away so much with trying to hide the more contentious things.
When even Tories are already fed up with the slash and burn of thier own party, it looks as if maybre the initial 'fuck you all, we're in' attitude may need amending.
They may try to rush something through, but like now abandoned repeal of the fox hunting ban, and the proposed scrapping of the Human Rights Act, they will find that there is plenty of resistance from the SNP (who will certainly be opposed), Tory back-benchers (many of whom are not nearly as right-wing as the front bench), and the Labour party.
If they do manage to get past that level of opposition, there's the matter of public opinion. After the budget, there's already a growing sense of betrayal and distrust from many of those who voted for them. Trying to force something like this through will further damage their already tarnished public image.
Then there's the House of Lords. I doubt they'll be able to push it through as 'emergency legislation' this time without proper debate in the second house. Say what you like about the fairness of having hereditary peers, but as an unelected body, they don't have the same concerns of electioneering, or even party loyalty, to worry about, and any bill could meet tough resistance here.
The ham-faced boy and his party weren't expecting to get an overall majority in this parliament, and didn't plan for it. They're now having to clear up their own mess, with nobody else to share the blame with. They may find it harder going than they planned. Expect more of their election promises to vanish under the fiery glare of scrutiny...
Election promises are falling like nine-pins - the care home fees cap has been pushed back to 2020 (it was going to be paid for by keeping the inheritance tax threshold as it was. Oops). Which means it will probably not come in this side of the election. And all the rail investment in the North has been scraped, of course.
The efforts to abolish the Human Rights Act has gotten bogged down by the fact that's it would probably invalidate the Good Friday Agreement in N.I.
Sorting out that 'dependancy' is not a task the worlds bast diplomat would take on...
The more liberal parties in N.I. brokered that agreement, the current lot of MLA's have enough issue agreeing the social security budget. (wipes tear from eye) makes you kinda proud, you know...
"plenty of resistance from the SNP (who will certainly be opposed), Tory back-benchers (many of whom are not nearly as right-wing as the front bench), and the Labour party.
SNP. Probably.
Tory back benchers. Torn between their "hang em high" and "small government is better government" memes.
The Labor Party. Who brought this in? The party whose leader wanted the UK to start carrying Identity Cards after the UK's only significant persistent terrorist (1 explosion a week or month on the mainland, not 1 a decade) threat had been disbanded?
I wouldn't be putting up any "Mission Accomplished" banners just yet.
they will find that there is plenty of resistance from the SNP (who will certainly be opposed), Tory back-benchers (many of whom are not nearly as right-wing as the front bench), and the Labour party.
Not the Labour party, they pretty much started this whole game in their "New" Labour incarnation. I'm rather disappointed that the rest of them just started singing along, but I guess that operation must have dug up so much dirt none of them had any option but to sing along :(
Trying to force something like this through will further damage their already tarnished public image
So what?
They didn't get in because they're popular with anyone; their image is essentially irrelevant.
They got in because they had no credible opposition; the only party giving them a kicking at the moment is the SNP, and given that they seem to be spending more time trying to embarrass the Tories than do the job they promised at election time, it wouldn't surprise me if there's something of a reaction next time around...
Vic.
"When even Tories..."?
No. Labour were just as bad. I'm an utter cynic in such matters, and the problem, IMO, isn't the Conservatives, or Labour - it's the unchanging common denominators, a.k.a. the Home Office, the Intelligence Services,the Police and so on. You can vote for any tint of government you like, but when the dust has settled, one layer down from the Home Secretary and the PM you'll still have exactly the same people scaring the new bosses rigid with the same intelligence stories and scenarios (accurate, exagerated and imagined) as they did the old ones, and pushing for the same "absolutely essential" measures (i.e. greater powers for them) that are needed "for the county's safety". Oh, and the terrible political consequences of not doing so.
It would take someone of serious integrity and moral courage to stand up to that sort of pressure, and sadly that's rarely found in the average politician. It seems to take the average government about two briefings to go native.
"a.k.a. the Home Office, the Intelligence Services,the Police and so on. You can vote for any tint of government you like, but when the dust has settled, one layer down from the Home Secretary and the PM you'll still have exactly the same people scaring the new bosses rigid with the same intelligence stories and scenarios (accurate, exagerated and imagined) as they did the old ones, and pushing for the same "absolutely essential" measures (i.e. greater powers for them) that are needed "for the county's safety". Oh, and the terrible political consequences of not doing so."
You are correct.
Which is why something like 10 Home Secretaries all sound like the same sock puppet on this. :(
The group behind them simply have no concept of any limit on state surveillance. As far as they are concerned it's impossible to have too much data on too many people, despite the fact this is the equivalent of putting the haystack with the (terrorist) needle in it (the excuse for this in case anyone has forgotten that) into a field of haystacks.
This has no logical basis in reality. It's a compulsive desire (or fetish) to collect such information.
It's not a policy, it's a disease.
If the legislation is unlawful does that mean prosecutions made under it are now also unlawful and subject to appeal, or maybe even automatic overturn?
I'm not sure it's so much a law that prosecutions might be made under, rather than a law that allows The Powers That Be to do things that they might otherwise be prosecuted for doing, or at least be under proper lawful scrutiny from the judiciary while they are doing those things...
If the legislation is unlawful does that mean prosecutions made under it are now also unlawful and subject to appeal, or maybe even automatic overturn?
There weren't any prosecutions AFAIK, so this is moot - this relates to what the ISPs etc had to do to retain the data, not what the police etc could do with it (which is covered by RIPA). There would only have been a prosecution if an ISP refused to comply with a retention notice.
Also, technically it's only section 1 of the law that has been disapplied - which is the bit dealing with data retention.
As for whether prosecutions could have been overturned, I'm not sure. The fact that the court is suspending their judgement until March 2014 - i.e. DRIPA s1 remains valid until then - in order for the government to fix things implies to me that there wouldn't have been grounds for an overturn. But then I'm absolutely not a lawyer, so I may well be talking out of my arse.
"
As for whether prosecutions could have been overturned, I'm not sure.
"
I *am* sure. The answer is that unlike US courts, UK courts are permitted to use illegally obtained evidence, so there would not have been any prosecutions overturned. UK courts will only exclude evidence if the way in which it was obtained casts doubt on the reliability of that evidence. Police have routinely used illegally retained DNA evidence for example (especially before the law was changed to permit retention of DNA from people not convicted of a crime). It might result in a verbal rebuke by the judge, but is permitted to be used as evidence. If you ever volunteer to give a DNA sample to eliminate yourself as a suspect, your DNA profile is almost certain to be placed in the permanent DNA database even though doing so is not permitted under current legislation. If it is ever used to prosecute you, the police will readily admit that they broke the law by retaining your DNA (usually claiming that the retention was an oversight), but that will most certainly not get you off the hook.
In the case of RIPA related legislation, much of the evidence obtained is used only for investigative purposes, not for prosecution, so the point does not arise anyway. (e.g. illegally obtained phone records shows that a suspect was in contact with Mr. Smith. Mr. Smith is consequently placed under surveillance and observed carrying out a criminal act. He will be convicted on the evidence of the observed act, and the phone records will not be used in evidence at all).
UK courts are permitted to use illegally obtained evidence, so there would not have been any prosecutions overturned.
That doesn't align with what I know (but, to be fair, IANAL). As far as I know, only German courts allow themselves the use of illegally obtained evidence which was very helpful with the CDs with stolen Swiss bank data they bought (that's actively encouraging crime, but the excuse played well in the press so they got away with it).
Further to this, and remembering that IANAL, I think there's a quick fix the government could do. Under RIPA s1(3) and s1(4) the secretary of state can introduce regulations with additional provisions. Under s1(4)(d) these provisions may include restrictions on access.
Regulations are secondary legislation that needs to be laid before parliament but for which there's no debate etc. There's not even necessarily a yes/no vote on them.
If the secretary of state issues regulations that require that a) data retained can only be accessed for serious offences, and b) a warrant or similar needs to be signed by a judge prior to each access, then that _may_ be sufficient to continue access. Doing so would meet both of the "in so far" bits of the judgment (see para 122 of the full judgement at https://www.judiciary.gov.uk/judgments/david-davis-and-others-v-secretary-of-state-for-the-home-department/ )
Given that limits and oversight were the main problems with this legislation in the first place, if these are added by regulations, this may do a lot to allay the fears that this legislation could be misused as a tool of oppression. The main issue, as I see it, is the current lack of judicial oversight, which is an absolute necessity in any real democracy.
They needed to amend the constitution so that they could pass 'all sorts of crazy laws.'
Only in The Simpsons. In real life the US government just ignored your constitution, and handed themselves huge tranches of power that have had no good effects, and many bad effects. But the population acquiesced to all of those evil laws. There was no uprising. No new political parties sprung up. The masses continued to vote for the indistinguishable crooks of the Republican or Democrat parties.
I think Obama should do the decent think, and his next presidential address should be from the White House privy. He can start off with the immortal words "I have in my hand a piece of paper..." before demonstrating to the watching public the high regard he and his fellow law makers have for your constitution.
Yep - under RIPA Part III
A couple of examples from a quick Google:
- http://www.theregister.co.uk/2009/11/24/ripa_jfl/
- http://www.bbc.co.uk/news/uk-england-11479831
In both cases I think there wasn't any doubt they had the passwords. I'm not aware of any cases where there was doubt whether the person _could_ unlock the files, or where that was a plausible defence.
"
Has a case about being forced to hand over passwords been before this court yet?
"
Yes, with convictions and jail. It is worth knowing the legislation before you hand over your passwords to the police. The police do *not* have the power to simply demand your passwords and charge you with a crime if you refuse to give them. The police must apply to the Home Office for permission to demand your passwords, and if permission is granted you will be issued with a signed written demand that specifies exactly what material you must supply the means to decrypt, and will give you a reasonable time (at least a week) to reply. If you get such a demand, always get it scrutinised by a lawyer who specialises in RIPA legislation to ensure that it meets all the legal requirements (the police have been known to issue their own written demands pretending that they are the official demand).
The police have also frightened people into revealing their passwords by citing RIPA and stating that the suspect will be convicted of a crime if he does not comply. In fact the Home Office are very aware that the legislation is highly contentious, and various groups keep track of how often it is used and with what results. If it is used too often on people who are found *not* to have broken the law there will be strong pressure to remove that law because it is being used unnecessarily, and so the Home Office do not grant permission lightly - the police must provide enough evidence to satisfy the Home Office that the data is highly likely to expose serious criminal activity. Your reply to a police officer who threatens to use RIPA if you do not voluntarily give up your password should be the same as the reply to a police officer who threatens to get a search warrant if you do not voluntarily let him into your home. "Fine, go ahead and carry out your threat, and I will comply as soon as you have got the required permission."
It is worth knowing the legislation before you hand over your passwords to the police.
It certainly is.
The police do *not* have the power to simply demand your passwords and charge you with a crime if you refuse to give them. The police must apply to the Home Office for permission to demand your passwords
This isn't true.
Section 49 states :
(2)If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds ... [ that a key is being witheld ] ... the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.
If you look at Schedule 2, you'll see that all that is required to become an "appropriate person" is that a judge/sherriff has granted you permission to issue Section 49 notices; judicial oversight is only required to get that status, not to grant notices.
Your reply to a police officer who threatens to use RIPA if you do not voluntarily give up your password should be the same as the reply to a police officer who threatens to get a search warrant if you do not voluntarily let him into your home. "Fine, go ahead and carry out your threat, and I will comply as soon as you have got the required permission."
That's not the advice I would give; although a PC trying it on would be dissuaded by such a refusal, any officer who has actually read the legislation knows that they can have a S49 notice at the drop of a hat - indeed, any officer understanding the legislation would already have one. Failure to comply with a S49 notice means jail time under Section 53
It's a shit law. It badly needs amending. But please don't give incorrect advice about what it says - there's a lot of trouble to be had there.
Vic.
"
If you look at Schedule 2, you'll see that all that is required to become an "appropriate person" is that a judge/sherriff has granted you permission to issue Section 49 notices; judicial oversight is only required to get that status, not to grant notices.
"
OK, so the permission does not have to come from the Home Office (though IIUC in practice the Home Office is currently always consulted due to the concern I stated), but my main point still stands - the notice must be given by an authorised person (who is most unlikely to be the policeman carrying out the arrest or interview), and if you read about the form of the notice you will see that it must be given in writing with adequate time for the suspect to comply, You do *not* have to give the password immediately a policeman demands it or face jail.
I'm also not sure why you do not like the advice I gave regarding not allowing a search or giving a password until the police actually have the necessary document to make your compliance mandatory.
Not exactly going to change much, is it? The ruling has been stayed, the Tories have a majority, no Lib Dems to hold them back, and Labour will always vote for increased state surveillance no matter what (they scare the fuck out of me). So next year we'll just get something even worse rubber stamped through.
Oh FFS. Man up and take a stand.
Defeatists like you are precisely the reason this sort of legislation gets through. If Davis and Watson had your attitude nothing would have happened today.
Personally I'm currently collecting sponsorship for Privacy International via JustGiving - what are you doing?
(BTW the only reason I'm not collecting sponsorship for Liberty is that they have about 2x the assets of PI)
Nothing -has- happened today. The spooks were slurping everything yesterday, they're slurping everything today, they'll be slurping everything tomorrow. Don't expect that to ever change.
What -can- change is to make the stuff they slurp up useless. Ubiquitous, properly implemented, open source encryption. A strong ecosystem for backdoorless operating systems. Increasing use of TOR to make frequency and metadata analysis less useful. Changing hearts and minds so the spooks find it harder and harder to recruit the bright young things they need. If working for the NSA/GCHQ was considered culturally the same as working for the Stasi in East Germany, how many graduates would find it appealing? How many more whistleblowers would there be?
It's not defeatism, just realism. Fight the battles worth fighting.
"What -can- change is to make the stuff they slurp up useless. Ubiquitous, properly implemented, open source encryption. A strong ecosystem for backdoorless operating systems."
Didn't David Came'Moron want to outlaw encryption?
Flame because Guy Fawkes should have succeeded in what he was planning to do.
"It was a Tory who took the case to the court, one of the few who voted against it in parliament as well."
It was a Tory and a Labor MP that took it to court.
Forget the party manifesto.
All MP's have just 2 variations.
The "democrats" who believe in the will of the people and the "authoritarians" who believe in the will of themselves.
And the authoritarian view is very seductive to the more feeble minded law maker, especially if they have a sense of entitlement.
"Emergency" legislation to legitimise illegal state surveillance has been deemed illegal. So we can expect more "emergency" legislation just before the deadline to try and legitimise it again. Rinse and repeat, but in the meantime the state continues to spy on you.
The court should have demanded immediate compliance until proper legislation was in place, with Home Secretary Theresa May and Chief Constables facing jail time for contempt of court in the event of non-compliance.
... is invalidated in its entirety by the ruling?
Only section 1 (data retention) of DRIPA was disapplied with this ruling. The other parts which covered some wording tweaks to RIPA (s3, s5), the extra-territoriality of RIPA (s4), or improvements to (s6) and reporting on (s7) oversight all remain.
Please tell me that this half-witted attempt at Animal Farm is invalidated in its entirety by the ruling?
That's the wrong Orwell novel I'm afraid. Animal Farm is an allegory about a socialist revolutionary party becoming the same as the autocracy it replaces. The one about state control and surveillance, and the crushing of privacy and individuality is Nineteen Eighty-Four.
Those in power in the Tory Party (and the civil servants behind the scenes that keep pushing for this kind of legislation) should make sure they read the book in its entirety - the inevitable conclusion is not only that such state power crushes its citizens, but that it also does so unto those in power.
“If you want a picture of the future, imagine a boot stamping on a human face—for ever.”
"The court found that sections 1 and 2 of DRIPA are incompatible with the British public's right to respect for private life and communications..."
There is such thing in the UK nowadays?
"...and to protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights."
European pesky stuff, always interfering with great Brit way of doing things ...
@ AC; Do you iron your underwear? Do you make notes of the neighbours transgressions from behind the curtains?
I am sure if you were in charge you would make a much better job of it and stand for no nonsense.
Goebells a relative by any chance? You sound just like the character he shows in his diaries.
Sorry to disappoint you, AC, but no legislation is going to stop death. It can badly affect the way people live though.
There are several countries where personal liberties mean little, and you should be happy there. They tend to get warm in the summer, though - oh, and they tend to be a bit violent.
I had a discussion a while back about this slithering monstrosity of a Bill.
A lot of the provisions in RIPA (ie requirement to supply decryption keys) do not take into account cases where the files are encrypted by malicious means such as Cryptowall.
In theory yes someone could be asked for a key they have no means to obtain and could be sent to prison for the offence of "failing to provide key when asked".
What would happen if I signed the official secrets act and was being forced to disclose a secured password. My employer would take a dim view and I could also be charged under the official secrets act.
I have several agreements I have signed in the past year that specifically do not allow me to had over passwords to 'ANY THIRD PARTY', under threat of prosecution should I do so.
If passwords to access servers etc have to be obtained using a mobile phone number and my own personal codes, this would be fine as I don't know the actual password until it's been sent via text. and these expire on logout. So would be useless anyway.
If the police had to investigate me, they would find numerous token fibs, and some defunct ones in draws or boxes from years ago, I'd hate to have to answer what they are all for becuase I can't remember.
What would happen if I signed the official secrets act and was being forced to disclose a secured password.
They'd just get a sufficiently cleared police officer.
allow me to hand over passwords to 'ANY THIRD PARTY', under threat of prosecution should I do so.
Any contract I am involved in the drafting of says "unless required to by law" or similar (there's often several caveats - e.g. parliament can mandate things when working with government departments). Also, I think criminal law trumps, and in this case protects you from liability under, civil law, as long as you show due diligence by making sure any warrant is in place, legal, valid, etc.
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