Daniel Hamilton: It’s time to defend our freedom and lift this ban

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OVER the past decade, there has been a significant expansion of the amount and scope of anti-terrorist legislation implemented in the UK.

The growth of the authoritarian state is inextricably linked to what Tony Blair once called the “changing rules of the game” – a new form of terrorism that defies borders and harnesses technology to achieve its poisonous goals.

The debate about the direction of civil liberties in the UK in recent years has been a passionate and varied one, with figures from across the political spectrum lining up to oppose proposals to introduce 90-day detention without charge, the imposition of ID cards and control orders.

Too little attention, however, has been paid to the policies of both the previous Labour and current coalition governments towards the surveillance of our personal communications.

Back in 2010, the previous government unveiled proposals for the introduction of the Intercept Modernisation Programme (IMP) – a vast database designed to log all details of all text messages, phone calls and emails sent in the UK. While her party had previously opposed the programme as “Orwellian” in nature, the Home Secretary Theresa May declared in October that she was “persuaded of the case to give the police and security officials enhanced rights to access the public’s communications”.

On Tuesday, the Government revealed details of its new “Prevent” strategy, a £63m package of measures designed to tackle terrorism in inner-city areas.

Included in the announcement was information about the new Counter Terrorism Internet Referral Unit (CTIRU), a body established to assess, block and, in some cases, remove internet content which is illegal under UK law.

Handing government the power to censor what we may and may not access is hugely regrettable. While nobody would disagree that terrorist material should be removed from the internet, it is only a matter of time before such a system would be used to block access to file-sharing websites or copyrighted films.

The single most significant reason behind the Home Secretary’s decision to press ahead with such draconian measures is the continued refusal of the security services to allow “intercept evidence” to be used in a court of law.

While the term “intercept evidence” conjures up images of sleuth-like detectives slipping into the lairs of criminal masterminds under the cloak of darkness in order to install bugs, its true scope is more prosaic.

Indeed, the ambit of intercept evidence is almost identical to that of the IMP, including wire-tapped phone calls, emails, faxes and letters.

There is, however, a key difference between the two approaches. The position taken by both GCHQ and the Government on this issue is a perverse example of chopped logic.

In refusing to accept intercept evidence, yet enthusiastically implementing the IMP and web-blocking, they’re ensuring that the privacy of every individual is violated, as opposed to only those suspected of committing terrorist offences.

Opposition to lifting the ban on intercept evidence centres on fears that information gathered by the police for terrorist prosecutions may run the risk of compromising its own covert surveillance work.

Such a position, however, simply doesn’t stand up to scrutiny. While GCHQ is right to demand that the identities of informants are protected, British law already has adequate legal protections in place in this regard. Witness protection laws demand that “requisite protections” are afforded in appropriate cases, such as the anonymisation of phone transcripts.

While the UK is unique in not allowing intercept evidence to be used in court, it has produced significant successes overseas. In 2007, a US Justice Department investigation into 10 terrorist plots involving 50 suspects showed that each investigation had been brought to charge within 48 hours on the strength of intercept techniques.

These prosecutions would not have been possible here. As long as the ban remains in place, so do the many strange anomalies connected to it. While British courts cannot hear domestic intercept evidence, they frequently secure convictions based on overseas intercepts.

Similarly, British intercepts can be used in prosecutions taking place overseas. While a conversation recorded on a hidden bug can be used in court, a recorded phone call or intercepted email is not.

To date, the Government has opted to set aside fundamental privacy concerns in order to implement web-blocking the IMP. Such programmes, we’re told, will “make us safer”.

Given that the majority of terrorist offences are committed by small groups of individuals, often operating outside the confines of mainstream society, it’s difficult to see how these schemes could achieve that objective.

Pinpointing terrorist activity among a database of billions of unique communications is akin to searching for a needle in a haystack. All the IMP and web-blocking achieve is the creation of the most invasive and intrusive surveillance measures in British history.

It is profoundly unlikely, given its long-demonstrated dogmatism on the issue, that GCHQ will alter its position. The Home Secretary has a clear choice. If she wishes to be seen as a defender of personal freedom as opposed to its invader, she must take a decisive stand and lift the ban on intercept evidence.

Lifting the ban wouldn’t only make us safer, it would make us freer.

Daniel Hamilton is director of Big Brother Watch.