<nettime> (UK) Police in new email spying row

[John Armitage <john.armitage@unn.ac.uk>]

[More tales from the UK, this time concerning the application by the police
of 'public interest immunity' (PII) certificates. As usual, the Labour Party
vehemently opposed their use when it was out of power. John]

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Police in new email spying row
Secret plan to prevent disclosure at trials
Stuart Millar and Richard Norton-Taylor
Tuesday June 18, 2002
The Guardian

http://www.guardian.co.uk/uk_news/story/0,3604,739323,00.html

Surveillance techniques to be used by law enforcement agencies to access
internet and telephone records will be kept so secret that criminal
prosecutions may be abandoned to prevent their disclosure, according to a
classified police manual passed to the Guardian.

Amid mounting opposition to government moves to allow a host of public
bodies to access phone, email and internet traffic data without a court
order, the leaked document from the Association of Chief Police Officers
sets out the lengths to which forces must go to prevent their
communications surveillance methods being revealed.

The manual, dated March 20 2002 and marked "Draft - not for open
publication", reveals that law enforcement agencies will be expected to
seek controversial public interest immunity (PII) certificates to prevent
disclosure at trial.

Senior officers acknowledge in the manual that the ability to access
communications logs without first seeking the permission of a judge gives
British police powers far in excess of those enjoyed by their counterparts
in most other countries.

"In many other countries this process requires a judicial order," the
manual says. "There is a need to balance this important power against the
right to privacy and to ensure that it is properly used."

The document, which will be used by every police force, the national crime
squad, the national criminal intelligence service, the Scottish drug
enforcement agency and customs and excise once approved, states: "This
manual contains significant areas of explanation concerning the
application of covert techniques, the release of which would be likely to
aid offenders in the frustration of law enforcement."

It continues: "There is an expectation that law enforcement agencies will
take all reasonable steps to protect any sensitive methodology in
accessing communications data through applications for PII, even in cases
where the product is intended for use in evidence."

In cases where this tactic is inappropriate and sensitive material is at
risk of disclosure, the crown prosecution service may have to advise that
the prosecutions be stayed.

The use of PII certificates has been at the centre of some of the most
high-profile judicial scandals. They were savagely attacked by Labour,
most famously in the Iraq supergun trial, when they were in opposition.
Their use was heavily criticised by Lord Scott in his arms-to-Iraq
inquiry. PIIs were also used in the M25 murder case, where the conviction
of the three defendants was quashed after the European human rights court
said they had been denied the right to a fair trial because evidence of
informers - protected by PIIs - was not disclosed at the trial. John
Wadham, director of Liberty, said: "This story gets worse and worse.
Preventing the defendant from having access to secret documents but giving
them to the judge is a fundamental erosion of the right to a fair trial."

Details of the manual emerged as the government indicated that it will
make limited concessions to proposals, revealed by the Guardian last week,
to extend the power to access communications records without a court order
to a range of government departments, local councils and quangos. But the
modifications, which may include limiting the scope of data these
organisations can authorise themselves to obtain, are unlikely to quell
the public concern.

A committee of MPs was today due to debate the proposal, introduced under
the Regulation of Investigatory Powers Act, but the hearing has been
postponed until next week, when the move will face stiff opposition from
across the political spectrum.

Tom Watson, a Labour member of the home affairs committee, said: "When I
read the breadth of this order I was shocked. I have no problem with the
police having these powers to crack down on organised crime or terrorism.
But the draft order gives the world and his dog the right to snoop on
emails and phone calls."

The latest Acpo document will hand fresh ammunition to government critics.
According to the manual, the interception of communications commissioner,
a senior judge appointed by the government to monitor how the powers are
used, will provide an adequate safeguard to prevent the powers being
misused. But critics say the commissioner, Sir Swinton Thomas, a retired
appeal court judge, is so under-resourced that it will be impossible for
him to check the thousands of data retention notices likely to be issued
by police and other agencies.




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