We're all (egg-wielding) terrorists now

The recent use of the Terrorism Act to police demonstrations indicates that traffic data stored under the Act will be used for much more than just fighting terrorism
Written by Matt Loney, Contributor

I’ve always had my suspicions about the Egg Marketing Inspectorate, and now I believe I know the truth.

The public face of this body is concerned with tracking down the likes of the Highgate Poultry Farm in North Yorkshire for marketing eggs outside the tolerance for grade ‘A’ (guilty), and the Planks of Stratford-upon-Avon for failing to mark loose free-range eggs (again, guilty).

So why, then, is the Egg Marketing Inspectorate still on the list of public authorities who will, if the Home Office has its way, have virtually unrestricted access to the details of every email sent or received, every Web site visited and every phone call made by every man, woman, child and organization in this country? Simple: its real job is tracking down egg-wielding terrorists.

The Egg Marketing Inspectorate has two pieces of legislation to aid it in this work: the Anti-Terrorism, Crime and Security Act 2001, and the Regulation of Investigatory Powers Act 2000. Neither act on its own is of much use to the Egg Marketing Directorate in its fight against terrorism, but combined they form a formidable tool.

The Regulation of Investigatory Powers Act (RIPA) has nothing to do with fighting terrorism, and everything to do with regulating how government agencies access data passing through the switchboards and switches of telcos, ISPs and other communications providers for their own investigations. Its conception was received in the assumption that it would be used to target individuals for specific investigations in the same way that phone taps have been used for decades.

One year later, along came the Terrorism Act 2001, and with it measures to ensure that every piece of communications data flowing through UK ISPs and telcos would be stored -- originally for seven years, but now after intense lobbying from all quarters, for 12 months. For the purpose of fighting terrorism, of course.

The Egg Marketing Directorate gets its powers because once all that data has been retained under the Terrorism Act for the purposes of fighting terrorism, RIPA can be used to access it -- and the Directorate is still on the latest list of public authorities to whom RIPA grants access.

Home Office Minister Caroline Flint says the government has "dramatically cut down" the number of organisations who will be allowed access to all communications data. In reality, the number has dropped from 25 to 24. Dramatic obviously means different things to different people. The Egg Marketing Directorate is joined by such leading lights in the fight against international terrorism as the Coal Health Claims Unit; the Personal Investment Authority; and your friendly Local Authority and all who sail in her.

But why do we care about all this? Data retention is regulated by the Terrorism Act and will therefore obviously never be used against regular people like you or me, even if we have been failing to mark loose free-range eggs.

Think again. Here's why.

Last week, at the Excel exhibition centre in London’s Docklands, a group of people (arms manufacturers) gathered to sell to a second group of people (their friends and the enemies of their enemies) weapons for killing a third group of people (who are never really identified but who have on occasion included selected members of the second group). Outside the exhibition centre, a fourth group of people (the police), were filmed stopping and searching a fifth group of people (demonstrators) using Section 44 of the Terrorism Act, which we had been told would never be used to stop and search anybody but suspected terrorists.

I do not subscribe to stereotypes of terrorists, but the protestors -- grannies and all -- gathered outside Excel certainly didn't look likely candidates to me. They obviously did, however, look like terrorists to the police who, armed with a ream of legislative powers to stop and search people, turned to Section 44 of the Terrorism Act. The nice thing about Section 44, if you a police officer, is that it is just so, well, easy.

Section 44 is made easy by Section 45, which says that although a police office can only use Section 44 "for the purpose of searching for articles of a kind which could be used in connection with terrorism," he or she can do so "whether or not the constable has grounds for suspecting the presence of articles of that kind." So if you're a police officer who wants to stop and search a demonstrator, then you can do so even if you have no reason for suspecting they have anything more dangerous than a pensions book or a rotten egg. It's altogether much less hassle than using troublesome legislation that was drawn up for policing demonstrations.

The reason that this incident should ring alarm bells for the tech industry and the country as a whole is that a precedent has now been set for law enforcement bodies -- not to mention the Egg Marketing Directorate -- to use one part of the Terrorism Act for purposes other than fighting terrorism; in this case, to quell political dissent and lawful demonstration. When the legislation went through parliament, the government was all-but forced to promise this would never happen, yet here we are, two years later, with a blatant example broadcast to the nation.

It does not bode well for the privacy of that 12-months'-worth of communications data that is to be retained under the Terrorism Act for the express purpose of catching terrorists.

The Home Office has trotted out the same platitudes to assuage fears that communications data retained under that Act will be accessed for any purpose other than fighting terrorism, in the same way that it promised the police would never use Section 44 for anything other than legitimate (I use that word in the wider sense) cases.

It's promises have proved to be worthless. The trouble is while that misuse of Section 44 of the terrorism act by police is a physical, visible act that can easily be caught on TV, misuse of the data-retention measures introduced by the Terrorism Act will, by its nature, be invisible to the television cameras. This is all the more worrying because it is perfectly likely to be used to investigate a wide range of people, right down to those whose closest brush with terrorism is to mis-label eggs.

Unscrambling these laws is likely to be as difficult as unscrambling eggs, but there is still time.

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