The dark threat of the Snooper's Charter
Just hours after marching alongside world leaders in Paris in the name of liberté, David Cameron backed the revival of the Snooper’s Charter in terms little short of terrifying. Free speech, it now seems, is only acceptable only when it can be accessed and reviewed by the state. Speaking to ITV, Cameron said:
…ever since we faced these terrorist threats it has always been possible, in extremis, with the signature of a warrant from the home secretary, to intercept your communications, my communications, or anyone else, if there is a threat of terrorism. That is applied whether you are sending a letter, whether you are making a phone call, whether you are using a mobile phone, or whether you are using the internet. I think we cannot allow modern forms of communication to be exempt from the ability, in extremis, with a warrant signed by the home secretary, to be exempt from being listened to.
The Independent claims that restricting communication to interceptable channels would not just hit typically ‘nefarious’ spaces like the dark web, but any service that encrypts user’s data in a way which shields it from security services. This could include billion-dollar chat service WhatsApp, along with others like Snapchat and Apple's iMessage. Such companies would have to acquiesce to government requests for data and re-writing their software if required, or risk outlaw and the persecution of their users.
This would not be the first time that a government surveillance programme closed down commercial ventures. In 2013 Edward Snowden’s email provider of choice Lavabit chose to close its doors rather than be forced to install surveillance equipment on their network and hand over private encryption keys to the US Government. Silent Circle suspended their email service shortly after.
It’s difficult to predict the impact to the UK’s digital economy should Cameron press on in this vein. Compromising on privacy is something which WhatsApp in particular is unlikely to do. In November, it switched on end-to-end encryption for Android devices, with plans to extend this all 600m+ of its users. Growing up in communist Ukraine, for co-founder Jan Koum user’s privacy is not just a feature, but a defining characteristic of the product:
I grew up in a society where everything you did was eavesdropped on, recorded, snitched on….Nobody should have the right to eavesdrop, or you become a totalitarian state -- the kind of state I escaped as a kid to come to this country where you have democracy and freedom of speech. Our goal is to protect it.
Cameron’s newly- resurrected charter not only challenges a service used by hundreds of millions across the globe, but stands as a barrier to the very value of free expression western politicians profess to uphold. It is more than just a tool to listen in on ‘the bad guys’. And it doesn’t just affect the criminals and extremists, for it strikes right at the heart of our digital infrastructure and dictates exactly what channels of (monitored) communication British citizens are permitted to use to exercise our apparently hallowed right to free speech.
However, whilst the world’s typical, centralized communication industries are at risk from the government’s surveillance fetish, new forms of decentralized, distributed software and communication channels – which have no centralized store of user information or cryptographic keys to raid– would be near impossible to bring to heel.
As ASI Fellow and COO of Eris Industries Preston Byrne explains:
David Cameron has said he wants to 'modernise' the law. I think he fails to understand just how out of date his worldview is. The only way you can shut down encrypted distributed networks today is to either arrest every person running a node and ensure that the data store containing a copy of that database is destroyed, or shut down the internet. Curtailing free association and private communications in the manner proposed is a battle the government is going to lose.
Banning end-to-end encryption will do nothing to prevent the technology from falling into the wrong hands - as any encryption technology worth a damn is open-source, and freely available to all - but will do a great deal to criminalise entirely reasonable measures taken by ordinary people to protect what private lives they have left.
To hang the case for a significantly reduced private sphere off the back of last week’s attacks is opportunistic, unpleasant, and distasteful. The tragedy in France has far more to do with issues of free speech, toleration and extremism than national security. The perpetrators of the French attacks were already known to intelligence officials, as was also the case in the 7/7 bombings and Lee Rigby’s murder. Hardly any acts of terrorism are by relative unknowns, who might have been identified were surveillance laws just that bit wider-ranging. Granting further powers and bigger budgets to security forces might show how ‘serious’ we are that ‘something must be done’, but arguably let agencies off the hook in terms of actually following up on already acquired intelligence.
No doubt Cameron has underestimated the scale, if not the significance, of what he proclaimed yesterday, and his attempt to create a surveillance-friendly communications ecosystem will be futile. But his words represent a threat in many ways much larger and darker than the terror he pledges to protect us from.
Boris is right. Tinkering with the presumption of innocence is, unfortunately, a minor change in the law
Boris Johnson has called for a change in the law. He wants to shift the burden of proof on those accused of travelling to Iraq and Syria to join ISIS. No longer will the prosecution be required to prove that they intended to join ISIS. Rather the accused will have to prove that they travelled there for innocent purposes. There has been near universal condemnation of Boris's proposals. The Prime Minister called it a knee-jerk reaction. Nick Clegg was not a big fan either. In addition to rejecting his proposals commentators on both the left and the right have taken issue with Boris's statement that this was a “minor change” in the law. They argued that instead it was an attack on this hallowed principle that is the presumption of innocence. The fact Boris did not realise that was further proof that he is unfit to become Prime Minister.
However, Boris is completely right. Not about the substantive proposal but about the fact it represents a minor change in the law. The fact of the matter is that the presumption of innocence has in the past few decades been severely eroded. In 1935 we were told by the Lord Chancellor Viscount Sankey that “throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt” [1]. There were only two exceptions: (i) the defence of insanity and (ii) statutory exceptions.
How often did Parliament by statute make exceptions to this golden thread? Andrew Ashworth and Meredith Blake attempted to find out in 1996 [2]. They look at how many of the offences triable in Crown Courts derogated from the presumption of innocence. It was not 5%, 10% or 20%. Out of 540 offences, 219 involved some form of departure from the presumption of innocence. That's just over 40%! In the Magistrates' Courts the position was hardly better. There, the defendant bears the burden of proving “any exception, exemption, proviso, excuse or qualification” [3]. At this point one can ask whether the exception has swallowed the rule. So Boris was not wrong when he described it as a minor change in the law.
The situation has not really gotten better since 1996. Parliament continues to reverse the burden of proof on a number of offences. In one respect, however, the situation has gotten better. Previously, if Parliament imposed a reverse burden of proof the courts would just have to apply it. However, following the coming into force of the Human Rights Act, the courts have been able to de facto nullify some of those reverse burdens.
For example in R v Lambert [2001] UKHL 37, the House of Lords was considering a provision of the Misuse of Drugs Act which required a defendant found in possession of a package containing drugs to prove that he did not know that it contained drugs. If the defendant failed to discharge that burden he would be found guilty of possession of drugs. The House of Lords held that this was an unjustfied infringement of the presumption of innocence. So, this provision was read as merely requiring the defendant to adduce evidence that he did not know the package contained drugs. The burden would then be on the prosecution to prove beyond reasonable doubt that this evidence was untrue.
Those wanting to repeal the Human Rights Act (and withdrawn from the European Convention on Human Rights), whilst still adhering to the presumption of innocence, should think carefully about that.
In the meantime the outrage sparked by Boris's comments should be directed to adopting the proposal the Criminal Law Revision Committee made in 1972: that there should not be reverse burdens in English criminal law [4].
1 Woolmington v DPP [1935] AC 462 at 481
2 “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306-317
3 Section 101 Magistrates' Courts Act 1981
4 Criminal Law Revision Committee, Eleventh Report, Evidence (General), Command Paper 4991 of 1972, para 140
Rajiv Shah is a PhD student in Law at the University of Cambridge.