Shining a Light Across the Water

Were David Miranda anyone other than Glenn Greenwald’s husband his detention wouldn’t have set off any alarms. Under Schedule 7 of the Terrorism Act of 2000, the UK government has the authority to examine anyone suspected of terrorism for 9 hours. According to the Home Office anywhere from 70,000 to 90,000 people are examined per year under the authority granted by Schedule 7. Out of a total of over 200,000 detentions since 2009 the Home Office admits to making only 20 arrests and obtaining 7 convictions.

Despite nearly a quarter million people being subjected to this procedure in the last 3 years it took the detention of a high-profile journalist’s partner to bring the absurdity of the law into focus. This is worrying, and it’s bigger than simply a hamfisted attempt at intimidation. Simply put: Europe and the UK in particular have a problem with “public interest” laws.

Whenever the debate over electronic surveillance or terrorism law comes up, a point I’ve tried to make repeatedly is that there’s a certain myopia associated with debates that focus solely on US counter-terrorism policies. I will not dispute that there are substantial problems with the policy apparatus and oversight mechanisms in the US government’s surveillance structure. What gets left out of these debates is the present state of the rest of the world, whether the quasi-authoritarian states like Russia or China, or with the shining beacon of human rights that’s the European Union.

The reality of how the European Convention on Human Rights and the greater European project treat civil liberties and human rights is substantially more complicated. Article 8 of the European Convention on Human Rights guarantees the right to privacy with the following proviso:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Read that one again. You will note that the language of Article 8, Section 2 is extremely broad. This provides substantial latitude to national authorities. The European Court of Human Rights has granted this latitude on several occasions such as Klass v. Federal Republic of Germany and the more recent Kennedy v. United Kingdom where surveillance laws were considered to be lawful despite violating the rights of the applicants. In cases where the ECHR had ruled against a state (most notably Malone v. United Kingdom) subsequent legislation has been shown to satisfy the “accordance with the law” section of Article 8.

What is interesting about the Convention is the degree to which it provides “outs” to states on what are supposedly fundamental human rights. We have everything from a public safety/insurrection exemption on use of force, to the possible derogation of those rights in war time. The only rights that don’t have a counter-provision are the rights to marry, effective remedy, freedom from discrimination and the prohibition on torture.

The different emphasis between the Convention and the US Bill of Rights is an illustrative example of how certain rights viewed as fundamental to a US citizen like assembly or expression, are considered more along the line of privileges with associated responsibilities in much of European society. Although the concept of freedom of expression or assembly in an American definition has largely been internalized in European culture, the legal definitions remain somewhat mired in a state-centric society model from the late 19th century.

These differences are often chalked up to the differences between a continental legal tradition and a common law tradition, but a cursory examination of the UK’s own legislative history suggests that the Atlantic Ocean rather than law code is the fundamental divide on considerations of communication and privacy. Both in terms of surveillance and counter-terrorism policy, Parliamentary supremacy and the limited strength of judicial review have allowed the UK to institute a much stronger surveillance state, censorship regime and detention system than the US has been able to impose on its own citizens.

The longer history of Europe’s struggle with terrorism also explains some of the public interest provisions. While terrorism as an external threat to the US is relatively new, European states have been struggling with some form of internal dissent or the other since the 19th century. The Irish question for the British, the various national separatist movements in Spain, the Red brigades in Italy are all examples of problems that have usually resulted in some sort of asymmetric warfare or terrorism. The result has been a cultural more tolerant of the need to maintain internal security and somewhat more blithe to the daily intrusions inherent in such regimes.

All this is not to say that the European project is the only one with problems or that the US is beyond criticism. But we need to realize that the debate to have about the Terrorism Act of 2000 in the UK is one that’s centered around a broader national security state structure in Europe which is, in its own way, as pervasive and intractable as the US national security state.

EDIT:
Since there’s been some interest in the practical applications of the relatively draconian nature of UK press and secrets law, here’s a link to the Guardian’s story on their own struggle with Sarah Tisdall’s leaks back in the golden days of Thatcherite Freedom.