Just who has your data?

First off for the record I’d like to say that some of the following may not be entirely true, and where the original ‘facts’ leaked may or may not of implied that both British and American Intelligence agencies worked together.  I will state this was purely down to the Americans.  I state this in full knowledge that in June 2013 a DA-Notice was issued asking the media to refrain from running further stories related to the US PRISM programme, and British involvement therein.

So, this has nothing to do with the British, where you may have thought British Foreign Minister William Hague admitted that Britain’s GCHQ was also spying and collaborating with the NSA, and defended the two agencies’ actions as “indispensable”.  This is not the case.

Edward Snowden divulged the existence and functions of several classified U.S. surveillance programs and their scope, including notably PRISM, NSA call database, and Boundless Informant. He also revealed details of Tempora, a British black-ops surveillance program run by the NSA’s British partner, GCHQ.

So, what does the average person have to do with any of this?

Some of the ‘leaks’ have mentioned the fact that the surveillance has been so wide-spread that the metadata on all phone calls are recorded, financial records, internet use and email is being monitored on just about everyone in Europe, the USA and ‘interesting’ countries and individuals.

Now, in the USA, a larger number of people are treating Edward Snowden, as a whistleblower, stating that the monitoring is beyond the scope of the agencies involved, and that the constitution of the United States protects freedom of speed, freedom of religion, and the expected right to privacy.

That’s all well and good for the American’s, but here in the UK we have not such rights.

Let’s look at a few examples.  No wait…  Let’s firstly think what rights we have in the UK.

Free speech – err no.  We no longer (did we ever?) have the right to say what we want.  Forget about liable law’s and defamation of character, which is a different matter.

Freedom of speech is the concept of the inherent human right to voice one’s opinion publicly without fear of censorship or punishment.  In theory as of 1998 this right is covered by the EU Convention under section 10.

BUT, there is a broad sweep of exceptions including

  • threatening, abusive or insulting words or behaviour intending or likely to cause harassment, alarm or distress or cause a breach of the peace (which has been used to prohibit racist speech targeted at individuals)
  • Sending another any article which is indecent or grossly offensive with an intent to cause distress or anxiety (which has been used to prohibit speech of a racist or anti-religious nature)
  • Incitement, incitement to racial hatred, incitement to religious hatred
  • Incitement to terrorism including encouragement of terrorism and dissemination of terrorist publications, glorifying terrorism, collection or possession of a document or record containing information likely to be of use to a terrorist
  • Treason including compassing or imagining the death of the monarch or advocating for the abolition of the monarchy
  • Sedition, obscenity, indecency including corruption of public morals and outraging public decency
  • Defamation, prior restraint, restrictions on court reporting including names of victims and evidence and prejudicing or interfering with court proceedings, prohibition of post-trial interviews with jurors, scandalising the court by criticising or murmuring judges
  • Time, manner, and place restrictions, harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, and limitations on commercial speech such as advertising.

So, let’s take a look at some of that…..

If I was to blog about the American Revolution and attach a copy of a ‘colonist’ leaflet from 1774, I could be in breach.  After all, at the time the ‘colonists’ that took a stance against King George III, were deemed to be terrorists.  Now, 300 years on and these people are hailed as patriots and founders of a nation, as far as the Americans are concerned.

Who, is to say now how the IRA, Al-Qaeda and other such groups will be seen in another 300 years time.  Remember, in the nine years of the Soviet occupation of Afghanistan, the then ‘Mujahideen’ were getting funds, weapons and training from the west.  Yet, while the Soviets called them terrorists, the west saw them as ‘freedom fighters’, many of whom became part of Al-Qaeda; so the west now calls the same groups and people terrorists now!

UK laws on the limits of free speech are among the strictest in the western world, imposing a high burden of proof on the defendant – you’re not innocent until proven guilty, you can be guilty until you prove yourself to be innocent.

Now the in UK law there is The Human Rights Act passed in 1998.  Article 8 – right to a private and family life. Respect for one’s private life includes:

  • respect for private and confidential information, particularly the storing and sharing of such information;
  • the right not to be subject to unlawful state surveillance;
  • respect for privacy when one has a reasonable expectation of privacy; and
  • the right to control the dissemination of information about one’s private life, including photographs taken covertly.

Right to respect for the home includes a right not to have one’s home life interfered with, including by unlawful surveillance, unlawful entry, arbitrary evictions etc.

Everyone has the right to uninterrupted and uncensored communication with others – a right particularly of relevance in relation to phone-tapping; email surveillance; and the reading of letters.

Now I’m not a lawyer, but this would suggest that the capture and storing information by Prism and Tempora would be in breach of this.  However, the act had the ‘get out of jail’ card for the government of stating – This right is subject to proportionate and lawful restrictions.

Thus the right may be lawfully limited. The theory being that limitation must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.

In particular any limitation must be:

  • in accordance with law;
  • necessary and proportionate;

and for one or more of the following legitimate aims:

  • the interests of national security;
  • the interests of public safety or the economic well-being of the country;
  • the prevention of disorder or crime;
  • the protection of health or morals; or
  • the protection of the rights and freedoms of others.

So that’s pretty much QEF

One final thought however….

After the 2009 scandal over MP’s expenses, MP’s tried to ‘hide’ what was going on and Harriet Harman, the then Leader of the House of Commons, tabled a motion which would exempt MPs’ expenses from being disclosed under a Freedom of Information request.  Now, when the The Daily Telegraph tried to get the information under the freedom of information act, I wonder why they didn’t try under The Human Rights Act under article 8 and the legitimate aim of  ”the protection of health or morals”?  But then again, who would expect to think of putting politicians and morals in the same sentence.


I would hope having read the about the items above you will feel that the following is worth signing – the petition “EU leaders: Stop mass surveillance

Repost from Sep 26th, 2013