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David Miranda, schedule 7 and the danger that all reporters now face | Alan Rusbridger | Comment is free | The Guardian
A little over two months ago I was contacted by a very senior government official claiming to represent the views of the prime minister. There followed two meetings in which he demanded the return or destruction of all the material we were working on. The tone was steely, if cordial, but there was an implicit threat that others within government and Whitehall favoured a far more draconian approach.The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: "You've had your fun. Now we want the stuff back." There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. "You've had your debate. There's no need to write any more."During one of these meetings I asked directly whether the government would move to close down the Guardian's reporting through a legal route - by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government's intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK. But my experience over WikiLeaks - the thumb drive and the first amendment - had already prepared me for this moment. I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?The man was unmoved. And so one of the more bizarre moments in the Guardian's long history occurred - with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. "We can call off the black helicopters," joked one as we swept up the remains of a MacBook Pro.
A little over two months ago I was contacted by a very senior government official claiming to represent the views of the prime minister. There followed two meetings in which he demanded the return or destruction of all the material we were working on. The tone was steely, if cordial, but there was an implicit threat that others within government and Whitehall favoured a far more draconian approach.
The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: "You've had your fun. Now we want the stuff back." There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. "You've had your debate. There's no need to write any more."
During one of these meetings I asked directly whether the government would move to close down the Guardian's reporting through a legal route - by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government's intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK. But my experience over WikiLeaks - the thumb drive and the first amendment - had already prepared me for this moment. I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?
The man was unmoved. And so one of the more bizarre moments in the Guardian's long history occurred - with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. "We can call off the black helicopters," joked one as we swept up the remains of a MacBook Pro.
Rusbridger says he spoke to senior Whitehall officials about this. Q: Did this go straight to Number 10? Yes, says Rusbridger. Q: And they said destroy the material or give it back to them? Yes, says Rusbridger. He told them that the Guardian had other copies of the material abroad. That is why the paper was prepared to comply with the demand for the UK version to be destroyed. That's it. The interview is now over. Updated at 12.44pm BST 12.42pm BST Rusbridger says the Edward Snowden material reveals fundamantal concerns about the powers of the state. These are important public issues. Even President Obama has recognised this. It is a subject of "high public importance". You cannot write about that if you do not have the facts. Striking a balance between security, and the press's ability to write about this, is difficult. But in the UK the state has acted against the Guardian in a way that would not be possible in the US. The authorities threatened "prior restraint" - going to court to stop the Guardian publishing further material.
Rusbridger says he spoke to senior Whitehall officials about this.
Q: Did this go straight to Number 10?
Yes, says Rusbridger.
Q: And they said destroy the material or give it back to them?
Yes, says Rusbridger. He told them that the Guardian had other copies of the material abroad. That is why the paper was prepared to comply with the demand for the UK version to be destroyed.
That's it. The interview is now over.
Updated at 12.44pm BST
12.42pm BST
Rusbridger says the Edward Snowden material reveals fundamantal concerns about the powers of the state. These are important public issues. Even President Obama has recognised this. It is a subject of "high public importance". You cannot write about that if you do not have the facts.
Striking a balance between security, and the press's ability to write about this, is difficult.
But in the UK the state has acted against the Guardian in a way that would not be possible in the US.
The authorities threatened "prior restraint" - going to court to stop the Guardian publishing further material.
Miranda had 'highly sensitive stolen information', Home Office suggests | World news | theguardian.com
The government has embarked on an aggressive offensive to justify the detention of David Miranda by suggesting that the partner of the Guardian journalist Glenn Greenwald possessed "highly sensitive stolen information that would help terrorism".Amid calls from across the political spectrum for a fuller explanation of the treatment of Miranda at Heathrow after a detailed statement from the White House, the Home Office made clear that his nine-hour detention was fully justified on the grounds that he was carrying leaked documents.A Home Office spokesperson said: "The government and the police have a duty to protect the public and our national security. If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning. This is an ongoing police inquiry so will not comment on the specifics."
The government has embarked on an aggressive offensive to justify the detention of David Miranda by suggesting that the partner of the Guardian journalist Glenn Greenwald possessed "highly sensitive stolen information that would help terrorism".
Amid calls from across the political spectrum for a fuller explanation of the treatment of Miranda at Heathrow after a detailed statement from the White House, the Home Office made clear that his nine-hour detention was fully justified on the grounds that he was carrying leaked documents.
A Home Office spokesperson said: "The government and the police have a duty to protect the public and our national security. If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning. This is an ongoing police inquiry so will not comment on the specifics."
Because that was undoubtedly the only copy of the information that the journalist Poitras wanted to send to the journalist Greenwald. And no doubt there is a shortage of mules to courier the data from Berlin to Brazil. It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
When I first heard Miranda had been detained at Heathrow for nine hours under anti-terror legislation I thought it was a disgrace. I assumed, as did others, that it was an act of petty vengeance and intimidation aimed at the man who had become a very large thorn in the side of the UK and US governments through his publication of information supplied by former NSA employee Edward Snowden. ... So, far from being a professional journalist working on a one of the most sensitive stories on the globe, Miranda was really just some bloke carrying something through customs for a mate. Which brings us to the first big issue. Presumably, Miranda was asked - as we all are at security - "have you been asked to carry anything for anyone else?" To which, if he was being honest, he should have replied: "Yes. But I don't know what it is. Could be to do with a film. Could be highly classified national security files. Can't be sure." ... I've long ago stopped trying to get my head around what goes on at The Guardian. But we can safely assume that if Alan Rusbridger agreed to this drastic course of action it wasn't because the hard drives didn't contain anything more sensitive than Polly Toynbee's latest polemic against Iain Duncan Smith.
...
So, far from being a professional journalist working on a one of the most sensitive stories on the globe, Miranda was really just some bloke carrying something through customs for a mate. Which brings us to the first big issue. Presumably, Miranda was asked - as we all are at security - "have you been asked to carry anything for anyone else?" To which, if he was being honest, he should have replied: "Yes. But I don't know what it is. Could be to do with a film. Could be highly classified national security files. Can't be sure."
I've long ago stopped trying to get my head around what goes on at The Guardian. But we can safely assume that if Alan Rusbridger agreed to this drastic course of action it wasn't because the hard drives didn't contain anything more sensitive than Polly Toynbee's latest polemic against Iain Duncan Smith.
a Blairite cuckoo
Even if you disagree with the law you're breaking, you're breaking a law and should expect consequences. It's called civil disobedience.— Epicurean Dealmaker (@EpicureanDeal) August 20, 2013
Even if you disagree with the law you're breaking, you're breaking a law and should expect consequences. It's called civil disobedience.
Alan Rusbridger: David Miranda, schedule 7 and the danger that all reporters now face
Miranda was held for nine hours under schedule 7 of the UK's terror laws, which give enormous discretion to stop, search and question people who have no connection with "terror", as ordinarily understood. Suspects have no right to legal representation and may have their property confiscated for up to seven days. Under this measure - uniquely crafted for ports and airport transit areas - there are none of the checks and balances that apply once someone is in Britain proper. There is no need to arrest or charge anyone and there is no protection for journalists or their material. A transit lounge in Heathrow is a dangerous place to be.
Miranda was really just some bloke carrying something through customs for a mate.
Except that he wasn't. He was changing planes. He wasn't in the UK at all when he was apprehended (and had he entered the UK, they would have had a hard time finding a pretext to arrest him there.)
No, he was intercepted, opportunistically and illegitimately. Just like the NSA (and the GCSE) intercept our emails.
And I haven't identified any laws that Miranda might have been breaking. It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
IANAL but it looks like imposing the laws of a nation-state on an international transit area are subject to the whims of the government. She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
Earlier Snowdon traveled from Hong Kong to Moscow's Sheremetyevo International Airport. 'Sapere aude'
Everyone who boards an aircraft at Heathrow has to be security screened to UK government standards. Even if you've already been through security checks at another airport, we're obliged to screen you again before you fly from Heathrow. 'Sapere aude'
"Could be highly classified national security files. Can't be sure."
Given that (if they existed), they were NSA files from the USA, in which country the possession of such files for journalistic purposes is not a crime, why would German security (they are the ones asking the question) or even UK security be concerned?
The answer is that here, as in so many instances, the UK is happy to do the dirty work that the USA can't do for itself. As, for example, the GCSE does surveillance of internet traffic as subcontractor for the NSA, doing stuff that would be illegal in the USA. It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
Nope. He was detained under an anti-terrorism law, that serves one purpose only: anti-terrorism. All other uses are unlawful.
Nine hours in the life of David Miranda | Jack of Kent
So schedule 7 provides a limited power to question and a limited power to detain. Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act. So the next question is fundamental - what does section 40(1)(b) say? Section 40(1)(b) is a definition clause, and it provides the following definition of "terrorist": a person who...is or has been concerned in the commission, preparation or instigation of acts of terrorism. Section 40(1)(b) thereby is a limiting definition - the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition. Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.
So schedule 7 provides a limited power to question and a limited power to detain.
Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.
So the next question is fundamental - what does section 40(1)(b) say?
Section 40(1)(b) is a definition clause, and it provides the following definition of "terrorist":
a person who...is or has been concerned in the commission, preparation or instigation of acts of terrorism.
Section 40(1)(b) thereby is a limiting definition - the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition. Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.
58 Collection of information. (1)A person commits an offence if-- (a)he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b)he possesses a document or record containing information of that kind. (2)In this section "record" includes a photographic or electronic record. (3)It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.
(1)A person commits an offence if-- (a)he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b)he possesses a document or record containing information of that kind. (2)In this section "record" includes a photographic or electronic record. (3)It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.
Now, I'd guess the official interpretation is that the information held by Snowden falls under 58(1)(a) and (b).
Just as if someone decided to invent a new form of encryption, terrorists would 'likely' find it useful.
Apparently journalism doesn't count as a reasonable excuse as per 58(3).
Of course this applies to all kinds of legitimate applications and knowledge, including almost all kinds of computer security and/or encryption algorithms and/or commercial products.
Theoretically it could also apply to a chemistry textbook, or an electronic design textbook, or a Koran. I'd like to think those would be more of a stretch, although it's possible I'm being optimistic.
Note there's no limitation clause. If there's some likelihood the information could be useful, possession of any record of it is an offence, even if it's widely available elsewhere.
If you want to run a police state, it's a conveniently stupid piece of legislation.
The other creepy thing about it is that it dates from 2000, when there was very little public interest in terrorism.
Of course between this and goons turning up to smash hard drives, it's obvious we're not in Kansas any more.
Not quite true. Read my link from diary above:
(BBC News) - Lord Lloyd of Berwick, a former law lord, was asked in 1995 by the then Conservative Government to review terrorist law. His report was part of the process which led to the Labour Government's Terrorism Act 2000.
"The starting point for this really is the Terrorism Act of 2000 and that came after about 30 years of Irish terrorism and it was well thought out and it was comprehensive. And it was fair. That is the act we ought to be enforcing now instead of which, whenever a new terrorist event occurs, we start adding new things to that act."
"And that I think is a mistake. It started first immediately after the Omagh bombing and then it happened again after 9/11 in America and now it has happened again as a result of the terrorist activity of 7 July."
"I think it's important here just to get the actual language of the proposed offence. It says that a person commits an offence if he glories, exults, or celebrates an act of terrorism whether in the past or in the future. Now to me that is a very, very odd provision. I have never seen anything like it in an Act of Parliament. And I pity the poor judge ..."
By its wording the act is pretty open-ended, the reason why it is under review. I wonder what answers David Anderson will get from the government. 'Sapere aude'
(a)he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism,
Since I "collect information" about drone technology I guess I'd better avoid the UK. She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
-- NaSoAp Handbook "Life shrinks or expands in proportion to one's courage." - Anaïs Nin
The man was unmoved. And so one of the more bizarre moments in the Guardian's long history occurred - with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. "We can call off the black helicopters," joked one as we swept up the remains of a MacBook Pro. Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won't do it in London. The seizure of Miranda's laptop, phones, hard drives and camera will similarly have no effect on Greenwald's work.
Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won't do it in London. The seizure of Miranda's laptop, phones, hard drives and camera will similarly have no effect on Greenwald's work.
While I disagree about some of his editorial decisions, Rusbridger is a smart guy and it was precisely because he understood the power of the state in "meatspace" that he had hardware with the files destroyed - absurd as this was. He knew that if he didn't surrender the files (which he had no intention of doing) or destroy them, the gov would start legal action - in meatspace - which could involve prior restraint and stop the Guardian publishing further stories. See eurogreen's comment and this interview with Rusbridger, particularly at 2.40 mins:
http://www.theguardian.com/world/video/2013/aug/20/alan-rusbridger-miranda-snowden-nsa-gchq-video Maybe it's because I'm a Londoner - that I moved to Nice.
Risbridge is wrong. First of all, he should have demanded a court order to destroy the hardware and/or the stored data. Second of all, the Guardian can publish from Brazil but that doesn't mean anyone in the UK will get to read it. In paper or online. After all, everyone browsing the net from Britain has to use a piece of actual hardware actually sitting in Britain a cell tower, a network port, an optical fibre connection, a DSL connection, an undersea wire, a satellite uplink. People have to use DNS servers and routers sitting physically in the UK.
What prevents the government from shutting down anyone who does not agree to insert a government sniffer unit in their hardware, with a gag order or a superinjunction or whatever they have in the UK that prevents people from even mentioning the fact that they have been gagged? Or else have their hardware destroyed, confiscated or sealed under the antiterrorism act?
The Great Firewall of China is coming soon to a united kigdom near you. Via meatspace. And there's nothing Rusbridge is going to do about it except brag that he can put his webserver in Brazil. Finance is the brain [tumour] of the economy
The Great Firewall of China is coming soon to a united kigdom near you. Via meatspace.
Friend of mine who at the time was in China could not access something funny, politically harmless. He noted that of course he could get around the Great Firewall, but that trying might bring unwelcome attention, so unless it was really, really important he was not going to. So yes, meatspace is where they get you and where they frigthen you to censor yourself.
I am not quite sure what the best strategy would have been, but if the choice will reamin one between testing the means judicially and printing I think setting up another paper in Brazil - Guardian Brazil or something - could be a way to ensure capability to do both. After all, you need to get the inforation on how you are being silenced out there, and Guardian Brazil maybe can get some timely leaks on exactly what goes on behind those locked court doors.
Reminds me of the 19th century (but these days, what doesn't?). For example:
Aftonbladet - Wikipedia, the free encyclopedia
When it was first published in 1830 by Lars Johan Hierta, it was a tabloid that reported news and also criticised the new Swedish king Charles XIV John. The king stopped Aftonbladet from being printed and banned it. This was answered by starting the new newspaper "Det andra Aftonbladet" (The second Aftonbladet), which was subsequently banned, followed by new versions named in similar fashion until the newspaper had been renamed 26 times, after which it was allowed by the king.[2]
Or rather, after which the executive power gave up. Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se
The long struggle against censorship in the 18th century at the time of oppressive kings in Europe involved the hand-copying and circulation of unpublished anonymous manuscripts. Sometimes dangerous or proscribed books were printed in places beyond the reach of the French kings, in Amsterdam or Geneva. The struggle against censorship was not won with the almost miraculous First Amendment to the US constitution. The amendment, which forbids the government to establish an official religion and prescribes freedom of speech, the press, and assembly only slowly over the subsequent two centuries actually came to mean in practice some of what the words seem to imply. It only took a decade or so for the US government to abolish the First Amendment, taking us back to a censorship regime. It is not the censorship regime of the Sun King in France, but it more resembles that system than it resembles the world imagined in the First Amendment.
The struggle against censorship was not won with the almost miraculous First Amendment to the US constitution. The amendment, which forbids the government to establish an official religion and prescribes freedom of speech, the press, and assembly only slowly over the subsequent two centuries actually came to mean in practice some of what the words seem to imply.
It only took a decade or so for the US government to abolish the First Amendment, taking us back to a censorship regime. It is not the censorship regime of the Sun King in France, but it more resembles that system than it resembles the world imagined in the First Amendment.
George Bush raising the laws of the Old West to how Washington needs to operate: Patriot Act, NSA spynetwork, invasion of Iraq, torture, rendition, Abu Ghraib, Guantanamo Bay, forced feeding prisoners, etc. Obama continues these laws with more vengeance. Who is Cass Sustein?
Extrajudicial killing of US citizen Al-Awlaki in Yemen (plus 2 other US citizens) and the war crimes of drone attacks in Pakistan and Yemen. Who gets jailed for 35 years?
○ Support Manning for the Nobel Peace Prize ○ Toobin, CNN's Shill for the Establishment/NSA his bio 'Sapere aude'
Rusbridger happens to be the editor of a paper which has one of the pioneering and best news and opinion websites, which has taken on the gov over wikileaks and now Snowden/NSA stories. But you're sure he doesn't understand about the powers of gov in relation to the internet - don't you think you might be a little bit arrogant here ?
Rusbridger is talking about what seem to be possible courses of action NOW; he's not claiming they can get stories out and available in the UK WHATEVER the gov might do in the future. The gov is clearly embarrassed by the revelations so far and are reluctant to seem too heavy-handed, hence the civil servant saying "you've had your fun". They have also recently been influenced by the right-wing press's hypocritical defense of press freedom after the Leveson report, so they do not want to seem to be attacking that freedom too much and wouldn't get support from their usual mates in the right-wing media if they did.
I think there would be a lot of public outrage and pressure on the gov if they were shown to be blocking Guardian stories published from elsewhere - they would not want to seem to acting like the Chinese. But this is speculation about possible future scenarios, not evidence of Rusbridger' supposed ignorance, no better supported than was the criticism of Greenwald that he was supposedly "entirely ignorant of international treaties" - which turned out, as I suspected, to be false.
Having seen the kind of material involved in the wikileaks and Snowden/NSA stories, and having had to deal with various kinds of gov pressure over the years I think Rusbridger is pretty well aware of what gov is technically able to do, but also of its desire to keep some sort of credibility in regard to the role of the media in a supposedly democratic society - and the pressure of the right-wing media for the gov not to interfere. I think Rusbridger is to be applauded for the stand he's taken, not arrogantly put down because he hasn't discussed all the possible future scenarios - while you don't take into consideration the government's reluctanace to use all the means techinically available, for political reasons, as their political credibility would be radically undermined if they were seen to be acting like China in blocking access to journalism. Maybe it's because I'm a Londoner - that I moved to Nice.
Cf.:
http://video.msnbc.msn.com/all-in-/52805576#52805576
especially about 4 minutes in - and the tone is far from "bragging". Maybe it's because I'm a Londoner - that I moved to Nice.
http://www.theregister.co.uk/2013/08/23/guardian_nyt_partnership_on_gchq_disclosures/
Meanwhile you continue to try to find fault instead of welcoming their continuing efforts to bring this stuff to the public's attention - the majority sympathetic to Snowden - and hence to those supporting him. Maybe it's because I'm a Londoner - that I moved to Nice.
But I think he should have demeaned a court order should have indeed pursued legal action. And that is not a "nasty little put down" but a quite fundamental question.
Blogging from your phone, eh? Finance is the brain [tumour] of the economy
"Blogging from your phone, eh?"
I don't belong to the spoiled youth of today who needs mechanical help to mess up.
He shouldn't have demanded a court order for the reason I gave - which you just ignore - mere assertion is not very convincing. Maybe it's because I'm a Londoner - that I moved to Nice.
it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age
They are not MY "worries"they are the views of a very experienced British editor - who knows rather more about the press and British law than you. Maybe it's because I'm a Londoner - that I moved to Nice.
First term mistake.
This fallacy is committed when the person in question is not a legitimate authority on the subject. More formally, if person A is not qualified to make reliable claims in subject S, then the argument will be fallacious.
As I said, they are the views of a very experienced British editor, who constantly has to deal with issues of the relations of the press and the British legal system - and hence is a "legitimate authority" on the subject.
IM must try harder in the second term to avoid obvious blunders :-) Maybe it's because I'm a Londoner - that I moved to Nice.
Others seem to like to carp even about those who do this. Maybe it's because I'm a Londoner - that I moved to Nice.
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