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Schedule 7 and the detention of David Miranda

The calculated detention, interrogation, and search of David Miranda brings into sharp relief the draconian legal frameworks that define security and policing in the United Kingdom. These events highlight not only the imperilled state of privacy rights and free expression in Britain, but the breakdown of the democratic institutions that should be protecting individuals not only from terrorists, but from unrestrained government power.

Miranda, the partner of Guardian journalist Glenn Greenwald, was detained at Heathrow Airport on Sunday. He was subjected to almost nine hours of questioning for being associated with a writer and newspaper that has blown the lid off of the overreaching activities of Western intelligence agencies. Miranda also had several of his electronic devices seized, including his laptop, USB thumbdrives, mobile phone, camera, and gaming consoles.

With the additional news that Government officials oversaw the destruction of hard drives in the Guardian newsroom, in a failed attempt to prevent journalists from reporting on clandestine GCHQ and NSA intelligence operations, it is clear that the UK government has resorted to bullying tactics with little regard for the democratic values it purports to promote.

According to the Home Office, "Those who oppose this sort of action need to think about what they are condoning. " The British government is now equating support of civil liberties and the rule of law to supporting terrorism. Their actions suggest that they believe the fundamental right to privacy is no more than the reserve of violent criminals, and free expression a threat to the public and national security.

We know from past experiences, however, that such aggressive denials are a symptom of a weakened position. For the Home Office, the Miranda affair represents the dramatic climax of a scandal that has been building since Snowden's revelations began in early June. For the people, it is the tipping point. The Government's most recent actions undermine what little trust the public may still have in the State.

We must question the government's promises that State intrusion into our lives is making us safer and instead demand the return of human rights to our democratic society. We must ensure that surveillance activities are prescribed by law, accessible, foreseeable, and overseen by independent oversight mechanisms. We must hold the private sector to account for its role in supporting government surveillance that violates human rights. And we must push back against the government's attempts to use overbroad laws to increase its reach into our online and offline lives in the name of national security.

Below, we take a look at one of those laws - Schedule 7 of the Terrorism Act 2000.

What is Schedule 7?

The examination of David Miranda is a high-profile example of a dirty secret in both the democratic and undemocratic world: nowhere do people have less rights than they do at the border.

Schedule 7 of the Terrorism Act 2000 allows certain examining officers to stop people at UK ports and borders in order to question them to determine whether they are engaged in acts of terrorism. The examining officer need not have grounds for suspecting that the person he is stopping is in fact involved in terrorism. Yet once detained, the subject of the interrogation must cooperate fully, "giv[ing] the examining officer any information in his possession which the officer requests." The examining officer in turn has the power to "search anything which [the subject] has with him, or which belongs to him" that has been or is about to be on a ship, aircraft or vehicle.

As several commentators have pointed out, the purpose of this Schedule 7 examination is to determine whether the subject "is or has been concerned in the commission, preparation or instigation of acts of terrorism." But the Miranda incident seems to indicate the UK government has interpreted these provisions as allowing it to detain whoever it wants, for whatever reason, and to examine their electronic devices, so long as they happen to be traveling through a UK airport, seaport or other border area.

As described in a recent report released by the UK government's independent reviewer of anti-terrorism laws, between April 2012 and March 2013 over 61,000 people were examined under Schedule 7. It is hard to believe all of those people were engaged in terrorist activities. The government's own statistics justify this skepticism - of those 61,000 people, only 670 (or around 1%) were actually detained beyond the initial interrogation, indicating the government had some semblance of a reason to believe they might be a threat. Less than 0.04% of those examined under Schedule 7 are likely to be arrested: in 2010/11 there were 31 terrorism-related arrests at ports; in 2011/12 there were only 24.

Seizure of mobile phones and other devices

With such loose standards, it would seem that any of us who travel into or through the UK could be subject to examination under Schedule 7.  Allowing the government such free rein undoubtedly leads to arbitrary and discriminatory invasions of our privacy that are neither necessary nor proportionate to the government's legitimate aims.

As the Sunday Telegraph reported back in July, one of the most troubling aspects of Section 7 is that the UK government is using it to seize computers and mobile phones of travellers without cause, and retain the data indefinitely. The UK justifies its actions as a natural extension of its powers to examine a traveller's paper documents. But mobile electronic devices carry so much more intimate information about us than we would have previously hauled around in our luggage. Everything from a list of contacts, to photos of loved ones, to financial and medical documents, to trade secrets might be contained on a traveller's computer.

Such breadth and depth of content should not be accessible to the government without safeguards against an abuse of power. At the very least, border agents should be required to articulate a reasonable suspicion as to why the person whose electronic devices are being seized may be involved in terrorist activities. This is the minimal standard the US Ninth Circuit Court of Appeals recently articulated for the intrusive, forensic analysis of a laptop computer seized at the US border. While such an invasive search of a computer really shouldn't occur without probable cause, it is very troubling that the UK is resisting implementing even the US's nominal standard.

Within the UK, the statutorily-appointed Independent Reviewer of Terrorism Legislation, David Anderson, agrees that Schedule 7 powers need to be dependent upon reasonable suspicion and to include "safeguards governing the practice of copying and retaining data from laptops and mobile phones."

Changes, but for the better?

Indeed, it is an open question as to whether Schedule 7 even authorises examining officers to access and seize information from electronic devices. Currently, the law allows officers to examine anything a person "has with him, or which belongs to him" for the purpose of determining if the item concerns or has been used in terrorism. But it is not at all clear the government can copy or retain any electronic content it locates during that examination.

Acknowledging that Schedule 7 may not extend to copying and retention, the government is seeking to amend Schedule 7 to explicitly permit such activities. But the newly proposed legislation, part of the Anti-social Behaviour, Crime and Policing Bill, does little to address concerns regarding necessity and proportionality. There are no new limits placed on examining officers' ability to search, copy or retain data from electronic devices.  No reasonable suspicion is required. And any acquired content may be retained for multiple purposes - not only if it helps determine if the subject is a terrorist, but also if it might be needed as evidence in criminal proceedings or for the purposes of making a deportation decision. In short, the proposed amendment to Schedule 7 regarding copying and retention makes things worse, not better.

If you have been detained by UK border agents and had your laptop, mobile phone or other electronic devices seized, we would like to hear from you.  You may contact us at info@privacy.org.