An American e-discovery site put up a link last week to a video showing police brutality. It is not just me, then, who sees connections between apparently diverse aspects of justice. Privacy and the right to go about your business are fast being eroded in Britain. There is a civil war looming, and information will be its weapons. Lawyers and judges will be in the middle of the battlefield.
Gabe’s Guide to the e-discovery universe, an American site dedicated, as this one is, to developments in electronic discovery, put up a link a few days ago to a YouTube video showing a fight at a football stadium in an unidentified country. A man runs across the pitch waving a banner; a squad of policemen bring him down, and one is seen repeatedly punching the already captive protester. The spectators flood the pitch and attack the police, who retreat. The compact between rulers and ruled, which (given their respective numbers) depends on public acceptance of the right of the rulers to impose law and order, has broken down.
We are heading in that direction in Britain. Policemen behave like that because ministers encourage them to think that they and the government which they represent are above the law. A few days ago, a British policeman brutally assaulted a middle-aged man as he walked home from work. The man died a few minutes later. At a memorial protest about that death, another policeman, his identification number deliberately obscured, struck a small woman across the face with a heavily-gloved hand and then thoughtfully and deliberately hit her legs with a telescopic baton. The government and decent policemen (the majority) are as appalled as the rest of us, but it is the government which has created the climate in which a policeman thinks this is the right way to behave. Several elements, tenuously linked to each other, bring us to this.
Which path shall we follow first in this skein which leads to a government thug in a mask and paramilitary uniform killing a passer-by? Let us start with data security, and Assistant Commissioner Bob Quick arriving in Downing Street to brief the Cabinet on an imminent police raid on alleged terrorists. Top-secret stuff, as you can see from the fact that his top secret papers are clearly visible to the world’s press.
Quick does not have the excuse available to the then Housing Minister Caroline Flint when she did the same last year (see People the weakest link in data security) – you do not get to be Assistant Commissioner of Police in charge of counter-terrorism without a brain. As Flint showed, intelligence is not a pre-requisite for government office. She was quietly sent off to be our Minister for Europe, presumably on the basis that the EU takes no notice of Britain anyway. Bob Quick resigned immediately.
There are two issues here which are not directly related to a silly slip by a man doing a difficult job under pressure. One is that data security breaches by the government have become commonplace at a time when it is collecting more and more data about us. Some are inherent in the system; others stem from acts of individual stupidity. They are not consistent with the very strict position which the EU takes on privacy and data protection, quite apart from our not unreasonable expectations about the quality of those who govern us.
The other issue is that Bob Quick should not have resigned over this – he should have been sacked back in November 2008 when he authorised a raid on the home and Westminster office of opposition MP Damian Green, who was arrested and held for nine hours. The nearest precedent is the attempt by Charles I to arrest five MPs in 1642. Several points arise here, but we will stick with the main ones. Home Secretary Jacquie Smith says that she was unaware of the pending raid – we do not disbelieve her (or, more accurately, we cannot prove her to be lying about this), but we can blame her and the government for creating a culture in which the police think it right to send a dozen anti-terrorism heavies to arrest a member of Parliament and read the private correspondence of his constituents.
Labour governments are keen on interference with the rights of individuals. At a relatively minor level this involves dim finger-wagging nags like Caroline Flint using their powers to impose their views on the rest of us, converting their morality into statute. At a much more serious level it brings erosion of liberty. I do not under-estimate the seriousness of the terrorist threat, but the result of anti-terrorist legislation has been that every two-bit nobody with a government job has the power to interfere in our lives and our privacy. All they have to do is assert that their action is covered by the anti-terrorist legislation.
The use of anti-terrorist police in the Damian Green case is a high-level example. There are others. A woman was arrested under the Terrorism Act in 2005 at the behest of a harbour-master; her offence was to walk on a track designated for cyclists. In the same year an 82 year old Labour Party supporter was ejected from the Labour Party Conference by a security guard and barred from re-entry by a senior policeman who relied on the Terrorism Act to justify the exclusion. The man’s offence was to heckle a minister. It is a short line from that to a masked police thug attacking a passer-by from behind with such force that he died. I cannot imagine that any of these things was expressly intended by the government to be authorised by the legislation.
We are lucky that the police cover-up of the attack on Ian Tomlinson was thwarted by a film taken by a passer-by, and lucky too that he was able to keep it and was not himself arrested or beaten up. Several of those taking photographs at the G20 protests that day were forced to delete them by the police. One policeman apparently asserted that it was an offence to film the police performing their duty, and only gave up trying to delete photographs from one camera when the photographer produced another to capture him doing it. The authorities have long asserted this right – here in Oxford, a traffic warden recently did the same, asserting that “data protection” made it unlawful to photograph her as she handed out a parking ticket, and threatening to call the police.
This is in fact a topic of its own, but it fits my context so I will cover it here. There were rumours in mid-2007 that the government was planning to ban or restrict public photography. An on-line petition on the No 10 e-Petitions web site drew this response from the government:
The Government appreciates that millions of people in this country enjoy photography. So we have checked carefully to see if any Government department was considering any proposal that might possibly lead to the sort of restrictions suggested by this petition. We have been assured this is not the case.
The author of this reassuring response must have known that this was false. Section 76 of the Counter Terrorism Act 2008, which came into force on 16 February 2009, contains just that – the power to arrest anyone who is found “eliciting, publishing or communicating information” relating to a constable, the armed forces or the intelligence services. The important proviso – that it must be “likely to be useful to a person committing or preparing an act of terrorism” – is not a nuance likely to be taken into account by a policeman on the ground. S76 (1)(2) provides that “It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action”. So I cannot just take a photograph because I enjoy photography (as the No 10 web site put it) – I must have a “reasonable excuse” for doing so. The default position is a de facto ban which I might, after my arrest, be able retrospectively to avoid.
There are reports of security guards – that fearsome underclass of unregulated quasi-official thugs – threatening people who take photographs, for example at Manchester Station. The government and senior policemen may protest that this was not the intention of the law, but it will take a brave photographer to resist when he has seen the footage of a masked bully in a police uniform beating up a man whose only offence was to cross the street insufficiently quickly for the policeman’s liking. I carry a camera almost everywhere; when it happens to me, I would like to think that I will calmly and politely ask the official both for his name and number and for his authority for demanding that I delete my photographs – how will I react now that I have seen this footage?
The most recent attack on our liberties and privacy came in March with a requirement imposed on ISPs to keep records for one year of every e-mail passing their servers. This, for the moment, excludes the body of the messages and, for the moment, does not involve centralising the data in the vast government database which is rumoured to be on the stocks. The requirement emanates from the European Commission, that bastion of privacy, whose data protection requirements cause so much grief to US courts and lawyers. Article 8 of the European Convention on Human Rights purports to protect the right to privacy.
Wearing my data junkie hat, I am fascinated with the potential of this. Some of the bigger litigation applications which I see can do the most amazing things with e-mail metadata. Graphical displays show thick lines between regular correspondents, and graphs of the peaks and troughs of e-mail traffic. Who corresponds with this person across that period? Who are the main participants in e-mail chains emanating from this person, company or country? Oh look – this person is forwarding all his messages to an e-mail address we did not know about. It is fabulously powerful, and in the hands of a skilled investigator can produce information which is very much greater than the sum of its parts.
The problem is that this is not just data about company matters, and the potential users are not just those with legitimate business – all sorts of people, even down to the pen-pushers in local authorities, will get access to this information, either because their job entitles them to it or because of the inevitable security flaws. An oaf in a blue uniform will consider it within the spirit of his powers to see who is corresponding with an opposition MP, and will leave the results on a train or wave it about in front of photographers. The dumb animal at your local authority in charge of collecting your rubbish will supplement what he finds from trawling your bins by looking up who corresponds with you. The policeman who deleted your photographs of him performing his public duty (but who photographed you and took down your details) will see if he can find something in your e-mails – or your tax records or your medical history – to harass or intimidate you with.
Occasionally we see the biter bit. On Friday Damian McBride, known as McPoison, who was employed at No 10 Downing Street at taxpayers’ expense to dig out or invent damaging information about the Labour Party’s opponents, was forced to resign after his e-mails containing inaccurate (and apparently obscene) smears on opposition politicians found their way into the public domain. It follows the leak of the details of how the Home Secretary, with other senior politicians (“their snouts so deep in the trough we can’t see their curly tails” as the Daily Mail put it), has been milking the tax-payer with her expenses claims – we must assume, of course, at least pending the official investigation, that these were all properly vouched for. Both McPoison and Jacquie Smith seem frightfully upset that their private information has been so exposed. Both are paid for by us, and both McPoison’s libellous filth and Jacquie Smith’s 88p bath plug are legitimate public matters. If our private information has no protection from them, then their information deserves none from our gaze.
Let us go back to the angry crowd surging across the football field and attacking the police who had so abused their powers that popular force arose spontaneously. The London police “won” the G20 battle by brute force – their numbers, training, tactics and equipment were enough to defeat the protesters, only a handful of whom were intent on violence anyway. There is a civil war coming, I think, in the sense of a running battle between repressive government and the people whom it rules. Only a fraction of it will involve bloodshed in the street. Mostly it will be an information war. One side will have enormous databases, powers of entry and the right to arrest for the exercise of democratic rights, many of which originate from that failed attempt by Charles I to arrest MPs in 1642. The other side will have web sites and blogs, Twitter and Skype, and video on their phones. Heavy-handed laws, improperly and incompetently used, will make for the government enemies who will have far more power, in real terms, than the handful of extremists at whom the laws are aimed.
The last few weeks have seen a draw. The government has acquired the power to ban photography and to trace our e-mails; their forces have killed one man and physically injured many others. On the other hand, we have got the resignation of the man who raided Damian Green’s office, have forced out Gordon Brown’s brewer of anti-opposition poison, and fatally weakened in political terms a Home Secretary whose threat to civil liberties is greater than that of any of her predecessors.
Lawyers and judges will be in the middle of this battlefield, and not just those who deal in criminal work or who bring or defend claims involving the government. Privacy is a civil right as well as the basis for criminal proceedings. Furthermore, a by-product of this war, as happens in all wars, will be technological innovation. We will see advances in communication on both sides as one tries to find, and the other to cover, communications between people. Most of what people will prefer to hide will not involve making bombs, but will be about a mistress, a betting habit or an obsessive interest in steam locomotives. Interfering harridans like Caroline Flint will think it their job to know about this and will not understand our preference that they mind their own business. We will find ways of keeping it that way.
It takes no time at all for developments in one arena to be harnessed for another – the Internet was devised for military purposes; Skype and other VOIP applications started for personal communication; FaceBook and its kin began as purely social applications. Each has been converted to other uses, criminal and commercial, and every advance is another source of potentially discoverable information. A lawyer who purports to advise on anything which involves communication – that is, on almost anything except possibly probate matters, where the scope for direct contact with the client is as yet limited – would do well to get some understanding of the technology.