Annie Machon

Judicial rendition - the UK-US extradition treaty is a farce

Sometimes I sit here reading the news -  on subjects in which I take a deep interest such as the recent police investigation into UK spy complicity in torture, where the police decided not to prosecute - and feel that I should comment.  But really, what would be the point?  Of course the police would not find enough concrete evidence, of course no individual spies would be held to account, despite the fact that the British government has already paid massive settlements to the victims.

Now there are reports that the police will be investigating MI6 involvement in the extraordinary rendition and torture of two Libyans.  The case appears bang to rights, with documentary evidence that high-ranking MI6 officers and government ministers were involved in and approved the operation.  Yet I'm willing to bet that the plods at Scotland Yard will still not be able to find the requisite evidence to prosecute anybody. 

The inevitable (and probably wished-for outcome on the part of the authorities) is that people become so weary and cynical about the lack of justice that they stop fighting for it.  And they can temporarily succeed, when we succumb to cynical burnout.

But the case reported in today's Daily Mail, that of a young British student facing extradition to the US despite having broken no laws in the UK, succeeded in rousing my wrath. 

The hapless 23-year old Richard O'Dwyer faces 10 years in a maximum security American prison.  His crime, according to the US, is that he set up a UK-based website that provided links to other international websites that allegedly hosted copyright material.

This case is so troubling on so many levels it is difficult to know where to begin.  There are issues around the crackdown of US corporate copyright law, issues around the inequality of the unilateral Extradition Act 2003, and historic questions of US hypocrisy about extradition.

So let's start with the unsupported allegations against poor Richard O'Dwyer.  He is a student who built a website that collated a list of sites in other countries that host films, books and music for free download.  O'Dwyer did not himself download any copyrighted material, and the websites he linked to were apparently within jurisdictions where such downloads are not illegal.  Providing a signpost to other legal international sites is manifestly not a crime in the UK and he has never been charged.

However, over the last couple of decades the US entertainment lobby has been fighting a vicious rearguard action against copyright infringement, starting with the music, then the film, and now the publishing industry.  The lobbyists have proved victorious and the invidious SOPA and PIPA laws are soon to be passed by the US Congress.  All well and good you might think - it's one of those mad US issues.  But oh no, these laws have global reach.  What might be legal within the UK might still mean that you fall foul of US legislation.

Which is where the Extradition Act 2003 becomes particularly threatening.  This law means that any UK citizen can be demanded by and handed over to the US with no prima facie evidence.  As we have seen in the appalling case of alleged hacker Gary McKinnon, it matters not if the "crime" were committed on UK soil (as you can see here, McKinnon's case was not prosecuted by the UK authorities in 2002.  If it had been, he would have received a maximum sentence of 6 months' community service: if extradited he is facing up to 70 years in a US maximum security prison).

The UK government has tried to spin the egregious Libyan cases as "judicial rendition" rather than "extraordinary kidnapping" or whatever it's supposed to be.  So I think it would be accurate to call Gary McKinnon's case "judicial rendition" too, rather than boring old extradition.

Richard O'Dwyer apparently didn't commit anything that could be deemed to be a crime in the UK, and yet he is still facing extradition to the US and a 10 year stretch.  The new US laws like SOPA threaten all of us, and not just with judicial rendition. 

As I have mentioned before, digital rights activist Cory Doctorow summed it up best: "you can't make a system that prevents spying by secret police and allows spying by media giants".  These corporate internet laws are a Trojan horse that will threaten our basic civil liberties across the board.

So now to my third point.  The hypocrisy around the American stance on extradition with the UK is breathtaking.   The UK has been dispatching its own citizens off at an alarming rate to the "tender" mercies of the US judicial system since 2004, with no prima facie evidence required.  In fact, the legal proof required to get a UK citizen extradited to the US is less than that required for someone to be extradited from one US state to another. 

The US, on the other hand, delayed ratifying the law until 2006, and the burden of proof required to extradite someone to the UK remains high, so it is unbalanced not only in concept but also in practice.  And this despite the fact that the law was seen as crucial to facilitate the transfer of highly dangerous terrorist suspects in the endless "war on terror".

Why has this happened?  One can but speculate about the power of the Irish lobby in the US government, as Sir Menzies Campbell did during a parliamentary debate about the Act in 2006.   However, it is well known that the US was remarkably coy about extraditing IRA suspects back to the UK to stand trial during the 30-year "Troubles" in Northern Ireland.  We even have well-known apologists such as Congressman Peter King, the Chairman of the Homeland Security Committee attempting to demonise organisations like Wikileaks as terrorist organisations, while at the same being a life-long supporter of Sinn Fein, the political wing of the Provisional IRA.

The double standards are breath-taking.  The US dictates an extradition treaty with the UK to stop terrorism, but then uses this law to target those who might potentially, tangentially, minutely threaten the profits of the US entertainment mega-corps; and then it delays ratifying and implementing its own law for potentially dubious political reasons.

And the UK government yet again rolls over and takes it, while innocent students such as Richard O'Dwyer must pay the price.  As his mother is quoted as saying: "if they can come for Richard, they can come for anyone".

Mediafabric conference in Prague

Last October I had the pleasure of speaking at the excellent Mediafabric conference in Prague.  The focus of my talk was the future of intelligence, whistleblowing and journalism.

The event was organised by Sourcefabric, an international organisation that provides open source tools and solutions for journalists, so it was an eclectic and stimulating crowd of journalists, geeks, hacktavists and designers.   So well done and thank you to the organisers.

Here's the video:

 

Geek humour

Well, it made me laugh:

Of course, I've never done this myself.....

More of these excellent cartoons can be found at xkcd.org.

Bits of Freedom - Amsterdam Talk, 16 September 2010

It's going to be a busy month for talks - I'll be in Amsterdam with the Dutch (digital) civil rights organisation, Bits of Freedom, on 16th September.  I use the brackets consciously, as I don't personally see a distinction between rights in the physical or digital world - the underlying principles are the same.

BoF is doing great work, so anyone within striking distance of Amstie please come along, not only for the talk, but for what also promises to be a great social evening!

If you can't make that night, I seriously recommend coming along to a BoF dinner on 24th September, where the guest of honour is acclaimed journalist, blogger and author, Cory Doctorow.  I had the pleasure of meeting up with him a couple of years ago in London - an extremely switched on man.

I really, really enjoyed his digital activists' handbook - sorry, novel - "Little Brother", ostensibly aimed at the young adult market.  But, hey, we're all young at heart, and this book is spot on!

Watch out, Big Brother.....

Echelon and the Special Relationship

Journalist and writer James Bamford, has a new book, "The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America" (Doubleday), which came out this week in the United States.

Bamford is a former producer at ABC News of thirty years' standing, and his book has caused quite a stir. One of his key gripes is the fact that foreign companies try to acquire work in sensitive US departments. He cites in particular the attempt in 2006 of Israeli data security company, Check Point Software Technologies, to buy an American company with existing contracts at the Defence Department and the NSA. This deal was stopped after the FBI objected.

Foreign software and security companies working within intelligence agencies are indeed a problem for any country. It compromises the very notion of national sovereignty. In the UK, MI5 and many other government departments rely on proprietary software from companies like Microsoft, notorious for their vulnerability to hackers, viruses and back door access. Should our nation's secrets really be exposed to such easily avoidable vulnerabilities?

Another section of the book to have hit the headlines is Bamford's claims that bedroom "conversations" of soldiers, journalists and officials in Iraq have been bugged by the National Security Agency (NSA).

Bamford, who is by no means a fan of the NSA in its current rampant form, makes the mistake of thinking that in the innocent days pre-9/11, the agency respected democratic rights enshrined in the US constitution and never snooped on US citizens in their own country.

While technically this might be true, does nobody remember the ECHELON system?

ECHELON was an agreement between the NSA and its British equivalent GCHQ (as well as the agencies of Canada, Australia, and New Zealand) whereby they shared information they gathered on each others' citizens. GCHQ could legally eavesdrop on people outside the UK without a warrant, so they could target US citizens of interest, then pass the product over to the NSA. The NSA then did the same for GCHQ. Thus both agencies could evade any democratic oversight and accountability, and still get the intelligence they wanted.

Special relationship, anyone?

Poor Bloody Infantry

There is an ongoing campaign to save Bletchley Park for the nation, in the teeth of government opposition. As historic British monuments go, the question of whether to preserve it for posterity should be a no-brainer. Bletchley is not only where Hitler's Enigma code machine was decrypted, along with many other systems, which arguably gave the Allies the intelligence advantage that led to victory in World War 2, it is also where the first digital electronic computers, codenamed Colossus, were operated. Two landmark events of the 20th century.

Recently The Times reported on this campaign. The article also the dwells at some length on how long Bletchley's secrets were kept by the 10,000 people who worked there during the war. Although this information was declassified after 30 years, the habit of secrecy was so deeply ingrained that many former employees never breathed a word. The article laments the passing of this habit of discretion from British life, stating that politicians and senior intelligence officers now appear to view the possession of insider knowledge as a good pension fund when they come to write their memoirs.

Over the last decade we have see a myriad of books emerging for the upper echelons of government and intelligence in the UK: Alastair Campbell, Robin Cook, Washington Ambassador Sir Christopher Meyer, ex-MI5 chief Dame Stella Rimington. Even Tony Blair has apparently signed a six figure deal for his memoirs.

All these books have a number of characteristics in common: they are lengthy, but say little of relevance about the burning issues of the day; they appear to have been written for profit and not in the public interest; and not one of these writers has ever even been arrested under the Official Secrets Act, even when there is clear prima facie evidence of a breach.

Yet these diligent authors are the very people who are the first to use the OSA to stifle legitimate disclosure of crime, corruption and incompetence in the highest levels of government and intelligence by real whistleblowers, who risk their careers and their freedom. The hypocrisy is breathtaking.

But was the old-fashioned, blanket discretion, vaunted by The Times, really such a good thing? The code of “loose talk costs lives” may have made sense during the Second World War, when this nation was fighting for its life. The work at Bletchley was manifestly a success, obviating any need to blow the whistle. But who can tell how these patriotic men and women would have reacted had they witnessed crimes or incompetence that damaged our nation's security, led to the deaths of our soldiers, or even possible defeat?

Also, was the 30-year non-disclosure rule around the work of Bletchley really necessary? After all, the war had been won, so how could disclosure benefit the enemy? This unthinking application of the standard rules cost the UK dearly. In fact, it would be accurate to say that it severely damaged the UK's economic wellbeing – something the OSA is supposed to protect.

In 1943 the British were the world leaders in digital electronic computing. The draconian Official Secrets Act precluded the development and commercial use of this knowledge in Britain after the war. In fact, mindbogglingly, the Colossus computers were dismantled and the research destroyed.

There were no similar provisions affecting the American cryptographers who had been stationed at Bletchley. Consequently, after the war they enthusiastically applied British research and technology to develop the US computer research programme and eventually the market, paving the way to the success of Silicon Valley and the domination of the world's IT markets for decades. What price the famed British stiff upper lip and discretion then?

Of course, there need to be legal provisions to protect real secrets that could affect Britain's national security. However, this should be proportionate and balanced, and should not prevent the development of new research and technologies, the exposure in the public interest of crime, and certainly not the fact our country was taken into war on the basis of lies.

Realistically, however, in the age of the internet such legal provisions are increasingly meaningless. Despite this, more and more countries appear to be adopting Britain's model of antiquated and draconian secrecy legislation.

We live in a country that criminalises any disclosure of sensitive information – unless it comes in the form of memoirs from senior politicians, Whitehall officials or spooks of course. As always, there is one rule for the generals and one for the poor bloody infantry.

For the good of our country, we need to rethink this legislation.

Pay peanuts, get monkeys

So the spooks are yet again trying to recruit IT professionals. MI6 is currently advertising for a, quote, “world class enterprise architect”, but is offering a salary significantly below the market rate. MI5 is constantly on the lookout for IT staff –as recent adverts in the press will attest.

My sense is that the agencies are still desperately playing IT catch-up. In the 1990s, when I worked as an intelligence officer, we were still writing out everything longhand and getting our secretaries to type it up – with all the attendant typos, revisions and delays. Information databases, such the system codenamed Durbar, which held the terrorist records, could only be accessed via 1970s, beige, monitor-and-keyboard, all-in-one computers.

In the early 1990s MI5 did try to develop its own information management system from scratch, rightly thinking that buying off-the-shelf from an American megacorp was probably not good security. However, MI5 management still thought IT was a low priority – despite the fact the efficient processing of information should have been the core work. So, the agency paid significantly below the market rates for IT professionals, and posted mainstream intelligence officers, with no project management experience, to run the department for 2 year periods. Needless to say, moral was rock-bottom. The IT bods were unmotivated, the IOs demoralised at being posted to a career graveyard slot and the unwieldy system, codenamed Grant, never got off the ground.

In the middle of the decade MI5 in desperation bought an off-the-shelf package which was based on Windows 95. Even then officers had to fight to have access to a terminal to do their work. And, of course, Windows is not known as the most stable or secure system available. I also heard recently that MI5 is still using this proprietary software, and thinks that it can protect its information systems by patching up security problems. It gives one such faith that MI5 can really protect this country from terrorist attack.

But this leads us onto a more serious issue regarding our national sovereignty. What the hell is our government doing, shovelling billions of pounds every year over to US IT companies to pay for licences that then permit our government departments to use their software packages? And with the current concerns about terrorism and the subsequent datamining activities of a paranoid US administration, how can we be sure that the NSA is not sneaking a peek at the work of our security forces via back doors in this software?

So, to protect our sovereignty, as well as develop our knowledge base and grow our economy, why does the UK government not encourage all government agencies and departments to switch from proprietary to open source software? After all, many other countries around the world are already doing this for precisely these reasons.

No doubt it's that pesky "special relationship" kicking in again.....

CCTV doesn't prevent crime

So, the argument about CCTV and our big brother society rumbles on. A senior policeman, Detective Chief Inspector Mick Neville of the Visual Images, Identifications and Detections Office (Viido) at New Scotland Yard, has been quoted as saying that only 3 per cent of crimes have been solved by CCTV evidence. Despite the UK having the highest per capita number of CCTVs in the world, this brave new world has failed to make us safer.

A few other police forces, and naturally the security companies flogging the kit, say that CCTV has at least dramatically reduced opportunistic crimes. Who should we believe?

What cannot be disputed is the fact that there are well over 4,000,000 CCTVs in this country, and the organisation, Privacy International, assesses that we are the most watched citizenry in Europe.

While some law-abiding citizens say they feel intimidated by CCTV and how the information could potentially be misused, most people seem not to care. In fact, the majority apparently feel safer if they can see CCTV on the streets, even if this pervasive surveillance has in no way discouraged crimes of violence. So why this gap between perception and reality?

One of my pet theories has always been to blame Big Brother. No, not the book. I have always been flummoxed by the popularity of the TV show and the plethora of reality TV spin-offs. My instinctive reaction was that it was similar to being “groomed” to accept round-the-clock intrusion into our personal lives. More than accept – desire it. The clear message is that such surveillance can lead to instant fame, wealth and access to the Z-list parties of London. And for that we are sleep-walking into a real Orwellian nightmare.

Slightly flippant theories aside, it is interesting that one of the most cited examples of the need for CCTV was the Bishopsgate bombing in London in 1993. In this case a lorry bomb, filled with a tonne of home made explosive (HME) was detonated in the heart of the city of London by the IRA. One person was killed, many were injured, and hundreds of millions of pounds worth of damage was caused, not to mention the fact threat the IRA scored a huge publicity coup.

But this had nothing to do with the lack or otherwise of CCTV in the streets of the City. It was an intelligence failure, pure and simple.

This attack could and should have been prevented. It occurred while I was working in MI5, and it was widely known in the service at the time that the bomber should have been arrested six months before during a surveillance operation. Despite the fact that he was seen checking out another lorry bomb in storage, he was allowed to walk free and escape to the Republic of Ireland due to procedural cock-ups. Months later, he returned to the City and bombed Bishopsgate.

By relying increasingly on technologies to protect us, we are following in the footsteps of the Americans. They have always had an over-reliance on gadgets and gizmos when seeking to investigate criminals and terrorists: satellite tracking, phone taps, bugs. But this hoovering up of information is never an adequate replacement for precise investigative work. Plus, any criminal or terrorist worth their salt these days knows not to discuss sensitive plans electronically.

Scatter-gun approaches to gathering intelligence, such as blanket surveillance, still at this stage require human beings to process and assess it for evidential use. That, according to DCI Neville, is part of the problem. There is just too much coming in, not enough staff, insufficient co-operation between forces, and the job lacks perceived status within the police.

The other problem of an over-reliance on technology is that it can always be hacked. The most recent hacking has broken the RFID chips that we all carry in our passports, Oyster cards and the planned ID cards. New technologies cannot guarantee that our personal data is secure, so rather than protecting us, they make us more liable to crimes such as identity theft.

So once again national and local government bodies have rushed to buy up technology, without fully thinking through either its application or its usefulness. And without fully assessing the implications for a free society. Just because the technology exists, it does not mean that it is fit for purpose, nor that it will make us safer.