New “Elsewhere on the Web”: Guest Blogging at FACT (7)

Yesterday I wrote a quick piece on the Chechen conflict for the MyWar blog at FACT, in response to the Moscow metro bombings. They’ve posted it this morning, and you can see it here.

As a question of terrorist tactics, the Chechen conflict is interesting for the combination of suicide fighters and hostage taking. While non-explosive suicide attacks are seen elsewhere – notably in Mumbai in November 2008 – it is an approach that the Chechen insurgents have made their own. The mixture of hostages and suicide fighters – as the Russian authorities have found – is extremely potent. Another relatively unusual element is the extensive use of female suicide fighters and bombers (the so-called “Black Widows”), something which has been relatively rare even in other Islamic insurgencies.

Somebody set us up the bomb, or Making a #TwitterArrest

File this one under “Things not to say on Twitter”.

At 0408 on January 6th, Paul Chambers greeted news that his travel plans were being disrupted by tweeting:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky-high!!

The offending tweet...now deleted

Silly? Yes. An over-reaction? Definitely. A criminal offence? Er…

South Yorkshire Police certainly seem to think so. They arrested Chambers under the Terrorism Act on Wednesday, held him for held him seven hours, deleted his tweet, confiscated his laptop and iPhone, then bailed him to appear on 11 February.

Needless to say, the reaction on Twitter has been one of amused disbelief, with the hashtag #TwitterArrest now in use. Blogging reaction has been largely one of disbelief; Dungeekin’s take on the situation on his blog is fairly typical.

Quite what the police could charge Chambers with is unclear. Bomb hoaxes are criminal offences (s.51(2), Criminal Law Act 1977), but the offence is quite specific:

51. Bomb hoaxes.
…
(2) A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.
(3) For a person to be guilty of an offence under subsection…(2) above it is not necessary for him to have any particular person in mind as the person in whom he intends to induce the belief mentioned in that subsection.

Any charging decision is going to turn on the question of intent. Chambers unquestionably communicated information he knew to be false (that he was going to blow up Robin Hood airport) to others (his Twitter followers, and the world at large), but did he do so with the intention of inducing those people to believe a bomb was going to go off? Even with the paragraph (3) saving, it will be difficult for the police to show that Chambers had that intent.

Chambers own account of the interrogation gives an indication of the thinking behind the arrest:

I had to explain Twitter to them in its entirety because they’d never heard of it…Then they asked all about my home life, and how work was going, and other personal things.
The lead investigator kept asking, “Do you understand why this is happening?” and saying, “It is the world we live in”.

While it’s encouraging that the police seem to have grasped the idea that a bomb hoax might be cry for help by someone going through difficult circumstances, it would be nice if they’d also grasped the idea that a glib comment made on a conversational medium might not be a bomb threat.

This isn’t the first time that UK police and prosecutors have gotten in a tizzy over glib comments on conversational mediums. In 2005, Angela Sceats, a 19 year old Australian student went on trial for making a hoax bomb threat. Her mistake? Sending a text to a friend from a delayed train to Stansted which read:

“…call the police and say there is a bomb on board…”

Unfortunately, the recipient – her flatmate – immediately dialled 999, leading to Sceat’s arrest, a security alert at Stansted, and the cancellation of several flights.

According to the prosecution, Sceat had hoped that the bomb threat would delay a plane she feared she was going to miss. Her flatmate had apparently replied “Serious?”, to which Sceat responded:

Absolutely. Hurry up. Do it from the phone box outside. Put on an accent. Tell there is a man with a gun to your head telling you to make the phone call.

The jury acquitted Sceat – although the Judge then made her pay her own legal costs! – and it’s difficult to see how they could have done otherwise.

Sceat’s 2005 trial took place just weeks after the July 7th bombings in London. If the prosecution couldn’t secure a conviction in that case – with a credible explanation of what the defendant stood to gain by making the threat – at that time, you have wonder what chance they have in 2010.

Several people on Twitter have observed, Chambers’ “offence” seems less serious than the specific death threats posted online by a police officer last year – which did not lead to an arrest (ht @unslugged, among others).

It’s true that however stupid the police reaction has been – and we’ve yet to see if the CPS are in a similarly silly mood – Chambers own conduct is questionable. But that’s not criminal. I can’t put it better than this:

Chambers has now protected his tweets – which seems like a wise move in the circumstances.

UPDATED: The Guardian has now picked up the story, and are reporting that Chambers tweetstream was locked at the time. Not true:

Google Cache from 11 January

I could only pull the graphic higher up because his tweet wasn’t protected, and as the Google cache shows, on 11 January it wasn’t locked – allowing anyone who wanted to to see his tweet. (ht to @piombo on Twitter for pointing out the cached copy)

The legality of stop and search

UPDATE: 20100112-1700

• Henry Porter in the Guardian takes a similar view on the case, and points out the Government’s attempts to ignore the earlier ruling on DNA sample retention (S & Marper v UK). Coincidentally, the Guardian also reports that Kent Police intend to admit unlawful stops and search (under a different piece of legislation, PACE s.1) were conducted during protests at the Kingsnorth power station in 2008.
• Here’s a disappointing blog from Douglas Carswell, who evidently finds it difficult to reconcile his desire to cut UK ties with international institutions with the total lack of backbone his colleagues displayed on this issue when the Terrorism Bill.
• The independent reviewer of terrorism legislation, Lord Carlile, who has a good record on this issue, thinks the ruling will mean a change in the law is needed.

In a long awaited decision, the European Court of Human Rights ruled today that anti-terrorist powers to stop and search violate the European Convention on Human Rights (Read the Court’s press release for a summary. Full judgement available from HUDOC).

Most embarrassingly for the UK Government, the Court held that the stop and search power fell down because it breached that most fundamental principle of English law – the Rule of Law.

Much will be written about this, both by the press and academics (probably including some of my former tutors!) but here are some initial thoughts.

Facts

The case arose from stops and searches of Kevin Gillan and Pennie Quinton at a demonstration outside an arms fair in London’s Docklands in 2003. Gillan was a protestor; Quinton was a photo-journalist.

The power used to stop and search them is based in the Terrorism Act 2000, s.44 of which allows a senior police officer to temporarily authorise stops and search within a defined area. These stops differ from normal stops and searches under the Police and Criminal Evidence Act 1984 (PACE) in that they do not require “reasonable suspicion”. It is effectively and essentially a power to conduct random searches.

Whilst the s.44 authorisation is supposed to be temporary (up to 28 days), and limited to a defined area, the entire Metropolitan Police area had been covered, and the power had been continuously renewed (and continues to be). Many other police forces behave in the same way.

Gillan and Quinton pursued a case before the English courts, with the House of Lords finally ruling against them in 2006 (full judgement here).

[This article (PDF) by Parishil Patel of 39 Essex Street provides a useful reminder of the legal position when this case came before the House of Lords.]

They then took their case to the European Court of Human Rights, claiming violations of four articles of the European Convention on Human Rights: Articles 5 (right to liberty), 8 (right to respect for private life), 10 (right to freedom of expression), and 11 (right to free association).

Reasoning

The Court found a violation of Article 8, and in line with its usual procedure did not proceed to consider the other potential violations. However, it gave a strong indication that it believed there had been a breach of Article 5.

The breach of Article 8 arose from the fact that the stop and search was a clear interference with the privacy of the person searched. and this was not “in accordance with law”. This did not simply mean (as the UK Government argued) that the power to stop and search was authorised by domestic law. To be “in accordance with law”, the power had to accord with the Rule of Law. It could not be unfettered, and sufficient safeguards had to existed to ensure it was properly applied.

Statistical evidence on the number of stops taking place was considered. Taking account of the extremely broad use of the power, and its effective permanence, the Court held that sufficient safeguards did not exist, and that as such the s.44 power was contrary to the Rule of Law.

The Court did not consider the breach of Article 8 was particularly serious, and awarded no damages (the decision itself was sufficient remedy). c.€35,000 were awarded for legal costs.

Comment

The case is a serious slap in the face for the UK Government’s counter-terrorism strategy (which has heavily focused on extending police powers and powers of detention). It comes on top of the UK’s own courts ruling against the control orders regime and expressing grave concerns about SIAC’s procedures.

By not ruling on the question of Article 5, 10, and 11 violations the Court leaves open the possibility of further breaches of the Convention in due course. Measures to bring the s.44 powers into compliance with Article 8 will still fall to be tested for compliance with the other bases argued by Gillan and Quinton. The Court’s strong indication that Article 5 was being breached suggests that stop and search will now be held to breach Article 5, unless properly justified.

The reasoning is also a riposte to the House of Lords, and in particular Lords Bingham, Hope and Brown. They appeared to doubt that stop and search could breach Article 8, and they have been told in no uncertain terms that it will, subject only to such breaches being justified in limited circumstances.

Given developments in House of Lords jurisprudence since their ruling in this case in 2006, it is likely that a different view would be taken if the matter came before the UK Supreme Court (which has now replaced the House of Lords’ judicial functions). This may have implications for the last major decision on the substance of control orders (as opposed to the procedure for implementing them).

The case also offers clear political opportunities – Labour has rather lashed its colours to the mast on anti-terrorist policy, leaving both Conservatives and Liberal Democrats the opportunity to welcome this decision (it is worth remembering that the Labour party reversed previous opposition to the renewal of the old Prevention of Terrorism Act in 1996, prior to its election in 1997).

Expect Unintended Consequences, or Something must be done!

3D body scanners, the UK and US’s preferred response to the attempted Christmas day airline bombing, are proving to be less of a magic bullet and more of a mis-fire.

Concerns have already been expressed by the airport operators, worried by the extra check-in time these new scanners will require. Their preferred solution is to use passenger profiling (which will essentially be racial profiling for most purposes) to chose which passengers to screen. I blogged about that a couple of days ago, discussing the efficacy of profiling, highlighting the relative scarcity of substantive evidence that profiling works, and pointing to theoretical work which suggests it will not.

The profiling aside, the efficacy of the scanners themselves is now being questioned. Ben Wallace, a Conservative MP and former advisor to the defence and security contractor Qinetiq, questioned the claims that such device would have detected the PETN bomb used by Farouk Abdulmuttalab – noting that they are not effective against low density materials, such as explosive powders, something Qinetiq appeared to confirm.

All of this is before you get near the privacy issues, which Amnesty UK  is not happy about, and the possibility that using the body scanners on children breaches laws against child pornography. [On a side note, whoever thought they did - and excluded children from the Manchester Airport trial of the scanners - is either not a lawyer, and so not competent to give an opinion, or needs to go back to law school. The Guardian should similarly be smacked for not bothering ask an actual, qualified lawyer. The 1978 Act applies to *indecent* images. Still, nice bit of publicity for tiny pressure group Action on Rights for Children.]

Whether scanners are even the best (read: least worst) option is now being openly questioned, with former senior US officials suggesting that trace detection swabs of passengers hands and luggage – a much cheaper and simpler option that body scanners – would actually be more effective.

So, to recap:

If the scanners work, our airports will grind to a halt, unless we embrace racial profiling.

But don’t bother, as the scanners don’t work anyway.

And if they did, it would invade our privacy and produce child pornography.

And in any even there’s no need, since hand swabs are much cheaper and more effective.

You couldn’t make it up.

The debate over scanners, swabs, privacy and child porn is actually quite academic. The way around it clear: internalise the bomb.  Think that’s just speculation? Nope, it’s already happened. Drug smugglers are willing to stick condoms full of narcotics into every orifice, despite the enormous risks this poses, so did you really think a suicide bomber on a one way trip was going to blink.

There has to be a better way, and apparently there is. Having the dubious advantage of dealing with this kind of problem for decades, the Israelis take a completely different approach to airport security, focusing on training for screening personnel and designing secure zones buildings that can cope with with having a bomb detonated inside them. That’s cope, not just survive. There are some serious caveats – Ben Gurion International Airport processes c.11.5 million passengers a year, whereas Heathrow has six times as many – but it has to be time to start looking beyond the latest shiny toy that Gordon Brown can announce on the Andrew Marr programme.

The efficacy of profiling, or Looking under lamp posts

Farouk Abdulmutallab has a lot to answer for. At least Richard Reid had the decency to keep his explosives in his shoes, so the security response was limited to the annoying but trivial step of x-raying footwear. Mr. Abdulmutallab chose to keep his bomb in his underpants, and even the British government isn’t silly enough to think asking airline passenger to strip in the terminal is likely to be supported.

[The fact that governments aren't following the precedent set after Richard Reid - and demanding passengers remove their underwear - actually says quite a bit about the relationship between political expediency, airport security, and the willingness of passengers to be inconvenienced.]

Instead, the Guardian reported today, they’re preparing to push ahead with the introduction of “full body scanners”, designed to allow security personnel to get a view under the clothing of passengers. While much has been written about those privacy implications – though nothing quite topped the Sun’s description of the process as a “rude scan” – far less attention has been focused on the shortcomings of the technology.

Unlike existing walk-through metal detectors, these X-ray scanners require the passenger to stand inside for several seconds for each scan, inevitably leading to longer queues at security checkpoints. Airports have already struggled to cope with new security measures introduced in the wake of the 2006 liquid bomb plot, and do not want to see their “passenger experience” further degraded.

One obvious solution is to target the use of these scanners onto those passengers most likely to be terrorists, but by and large those are likely to be young men of Middle East or Southern Asian appearance. As BAA’s former head of security, Norman Shanks, put it:

[Security screening] would be looking for people who are acting differently from regular passengers. However, it is going to appear to target a particular group of people because sadly it is that group of people that is presenting the problem at the moment.

The title of this post comes from old idea that people tend to concentrate their search where the light is – hence, looking under lamp posts. In the case of terrorism,there is a risk that searches focus on external indicators of racial origin (Arab names, southern Asian appearance, etc) which have become associated with terrorism, thereby missing individuals who do not display those external indicators.

It is not the case that Islamic terrorists are necessarily of a particular ethnicity – Richard Reid/Abdul Rahim (the “Shoe Bomber”) is of mixed (white British/Afro-Caribbean) race; John/Hamza Walker Lindh (the “American Taliban”) is white; while Farouk Abdulmutallab (who seems destined to be known as the “Pants Bomber”) is Nigerian – but a majority of those involved in the most high-profile attacks of the past decade have been of either Middle Eastern or South Asian ethnicities.

Given this, is there some merit in focusing airport security resources on people who are from those ethnic groups most likely to be involved in Islamic terrorism?

Such focusing would be racial profiling, and could be seen as no different from the use of the ‘sus’ laws in the UK in the 1970s, or the concept of DWB (Driving While Black) being an offence in some parts of the United States. The American Civil Liberties Union takes a strident position:

Racial Profiling is any police or private security practice in which a person is treated as a suspect because of his or her race, ethnicity, nationality or religion. This occurs when police investigate, stop, frisk, search or use force against a person based on such characteristics instead of evidence of a person’s criminal behavior.

…

Racial profiling is a new term for an old practice known by other names – institutional racism and discrimination – and owes its existence to prejudice that has existed in this country since slavery.

The problem with this position is obvious from the 2007 paper “Overlooked: Surveillance and Personal Privacy in Modern Britain” by Gareth Crossman, Liberty’s Director of Policy:

There is no simple dividing line between profiling and intelligence led identification. To an extent, some form of profiling will take place as a matter of course… For example, it is likely that HMRC will pay particular attention to passengers who fit the common demographic of a ‘drug mule’ travelling from locations identified as drug importation routes . To use this demographic as the sole basis for stopping someone would effectively amount to profiling. To take into account other indicators, such as behaviour or mannerisms consistent with trafficking drugs, is arguably intelligence-led identification.

Crossman appears to consider ‘intelligence led identification’ as proper, and ‘racial profiling’ improper. Yet the only difference between the two is a subjective observation about an individual’s behaviour, an observation that would be irrelevant if the individual had not met a “…common demographic”. Instead of the individual being suspected on the basis of their race, they have instead been made “eligible to suspicion” on account of it.

This may go some way to explaining why some response to this latest push for profiling appeared to abandon even the fig leaf of “…other indicators…” which Crossman set out. The Guardian quoted Khalid Mahmood as saying “…he would encourage the Muslim community to accept profiling”:

I think people would rather be profiled than blown up. It wouldn’t be victimisation. I think people will understand that it is only through something like profiling that there will be some kind of safety. Certainly some people will be aggrieved but the fact is that the majority of people who carry out these terror attacks do happen to be Muslims.

Similarly, the caution from Shami Chakrabarti, the Director of Liberty was a long way from the ACLU’s position:

We all take our security seriously but we need to learn the lessons of the recent past. Any response to terrorism has to be proportionate and respectful of the human rights values of dignity, privacy and liberty that governments on both sides of the Atlantic have been all too easily tempted to ignore.

Absent in this is one simple question – is profiling even effective? There is some theoretical work which suggests that at the gross level of ethnicity it will not be, but there are also statistical studies which suggest it is. UK statistics on stops and searches show that black people are far more likely to be stopped than white people (six times more likely in 2007) but equally likely to be arrested after a stop.

Efficacy should be at the heart of any debate over the use of racial profiling, but as the reclassification of cannabis showed, and the treatment of Professor David Nutt showed, we are governed by politicians who lack the courage to choose evidence over rhetoric.

One of the problems with the debate about racial profiling in 2010 is the degree to which we have stepped through the looking-glass over the past decade. While some of this may be about governments and corporations indulging in security theatre to try to reassure people, the security threats faced today are unlike those of 10 or even 5 years ago. Discussing the possibility of random searches in a 2003 article in the New York Law School Law Review, Professor Stephen J Ellerman assesses the merits of random screening:

Early in 2002, my daughter, who was 6 years old at the time and travelling with her mother, was selected [randomly]. Her backpack was opened and searched, and she was subjected to a metal detector wand pat down search of her body.

This is proof that is it is possible to avoid discrimination in security measures, but it is not proof that it is wise to do so. It may be that we live in a world where someone is prepared to use his 6-year-old daughter in a terrorist plot; if we’re not in that world yet, it may be that we would soon enter it if terrorist adults realized that 6-year-old girls were getting a free pass. Random searches…both make sense because we are far from sure what our adversaries will look like. But it isn’t conceivable that 6-year-old girls pose the same threat to airline security…as grown men do. So if 6-year-olds are actually as likely to be randomly searched as grown men are, then so some substantive amount of law enforcement effort is being largely wasted, as far as preventing terrorist attacks is concerned.

We are now in the world that Ellerman alludes to. One widely reported 2008 suicide attack in Afghanistan involved an 8 year old remotely detonating the suicide vest worn by his 13 year old brother.