Twitter abuse: one click to save us all?

A great deal has been said already about the twitter abuse issue – and I suspect a great deal more will be said, because this really is an important issue. The level and nature of the abuse that some people have been receiving – not just now, but pretty much as long as Twitter has existed – has been hideous. Anyone who suggests otherwise, or who suggests that those receiving the abuse, the threats, should get ‘thicker skins’, or shrug it off, is, in my opinion, very much missing the point. I’m lucky enough never to have been a victim of this sort of thing – but as a straight, white, able-bodied man I’m not one of the likely targets of the kind of people that generally perpetrate such abuse. It’s easy, from such a position, to tell others that they should rise above it. Easy, but totally unfair.

The effect of this kind of abuse, this kind of attack, is to stifle speech: to chill speech. That isn’t just bad for Twitter, it’s bad for all of us. There are very good reasons that ‘free expression’ is considered one of the most fundamental of human rights, included in every human rights declaration and pretty much every democratic country’s constitution. It’s crucial for holding the powerful to account – whether they be governments , companies or just powerful individuals.

Free speech, however, does need protection, moderation, if it is to avoid becoming just a shouting match, won by those with the loudest voice and the most powerful friends – so everywhere, even in the US, there are laws and regulations that make some kinds of speech unacceptable. How much speech is unacceptable varies from place to place – direct threats are unacceptable pretty much everywhere, for example, but racism, bullying, ‘hate speech’ and so forth have laws against them in some places, not in others.

In the UK, we have a whole raft of laws – some might say too many – and from what I have seen, a great deal of the kind of abuse that Caroline Criado-Perez, Stella Creasy, Mary Beard and many more have received recently falls foul of those laws. Those laws are likely to be enforced on a few examples – there has already been at least one arrest – but how can you enforce laws like this on thousands of seemingly anonymous online attackers? And should Twitter themselves be taken to task, and asked to do more about this?

That’s the big question, and lots of people have been coming up with ‘solutions’. The trouble with those solutions is that they, in themselves, are likely to have their own chilling effect – and perhaps even more significant consequences.

The Report Abuse Button?

The idea of a ‘report abuse’ button seems to be the most popular – indeed, Twitter have suggested that they’ll implement it – but it has some serious drawbacks. There are parallels with David Cameron’s nightmarish porn filter idea (about which I’ve blogged a number of times, starting here): it could be done ‘automatically’ or ‘manually’. The automatic method would use some kind of algorithmic solutions when a report is made – perhaps the number of reports made in a short time, or the nature of the accounts (number of followers, length of time it has existed etc), or a scan of the tweet that’s reported for key words, or some combination of these factors.

The trouble with these automatic systems is that they’re likely to include some tweets that are not really abusive, and miss others that are. More importantly, they allow for misuse – if you’re a troll, you would report your enemies for abuse, even if they’re innocent, and get your trollish friends and followers to do the same. Twitterstorms get the innocent as well as the guilty – and a Twitterstorm, with a report button and an automatic banning system would mean mob rule: if you’ve got enough of a mob behind you, the torches and pitchforks would have direct effect.

What’s more, the kind of people who orchestrate the sort of attacks suffered by Caroline Criado-Perez, Stella Creasy, Mary Beard and others are likely to be exactly the kind who will be able to ‘game’ an automatic system: work out how it can be triggered, and think it’s ‘fun’ to use it to get people banned. Even a temporary ban while an investigation is going on could be a nightmare.

The alternative to an automated system is to have every report of abuse examined by a real human  being – but given that there are now more than half a billion users on Twitter, this is pretty much guaranteed to fail – it will be slow, clunky and disappointing, and people will make mistakes because they’ll find themselves overwhelmed by the numbers of reports they have to deal with. Twitter, moreover, is a free service (of which more later) and doesn’t really have the resources to deal with this kind of thing. I would like it to remain free, and if it has to pay for a huge ‘abuse report centre’ that’s highly unlikely.

There are other, more subtle technological ideas – @flayman’s idea of a ‘panic mode’ which you can go into if you find yourself under attack, blocking all people from tweeting to you unless you follow them and they follow you has a lot going for it, and could even be combined with some kind of recording system that notes down all the tweets of those attacking you, potentially putting together a report that can be used for later investigation.

I would like to think that Twitter are looking into these possibilities – but more complex solutions are less likely to be attractive or to be understood and properly used. Most, too, can be ‘gamed’ by people who want to misuse them. They offer a very partial solution at best – and the broadly-specified abuse button, as I noted above, I suspect will have more drawbacks than advantages in practice. What’s more, as a relatively neutral observer of a number of Twitter conflicts – for example between the supporters and opponents of Julian Assange, or between different sides of the complex arguments over intersectional feminism, it’s sometimes hard to see who is the ‘abuser’ and who is the ‘abused’. With the Criado-Perez, Creasy and Beard cases it’s obvious – but that’s not always so. We need to be very careful not to build systems that end up reinforcing power-relationships, helping the powerful to put their enemies in their place.

Real names?

A second idea that has come up is that we should do more against anonymity and pseudonymity – we should make people use their ‘real’ names on Twitter, so that they can’t hide behind masks. That, for me, is even worse – and we should avoid it at all costs. The fact that the Chinese government are key backers of the idea should ring alarm bells – they want to be able to find dissidents, to stifle debate and to control their population. That’s what real names policies do – because if you know someone’s real name, you can find them in the real world.

Dissidents in oppressive regimes are one thing – but whistleblowers and victims of domestic abuse and violent partners need anonymity every bit as much, as do people who want to be able to explore their sexuality, who are concerned with possible medical problems, who are victims of bullying (including cyberbullying) and even people who are just a bit shy. Real names policies will have a chilling effect on all these people – and, disproportionately, on women, as women are more likely to be victims of abuse and violence from partners.

Enforcing real names policies helps the powerful to silence their critics, and reinforces power relationships. It should also be no surprise that the other big proponent of ‘real names’ is Facebook – because they know they can make more money out of you and out of your data if they know your real name. They can ‘fix’ you in the real world, and find ways to sell that information to more and more people. They don’t have your interests at heart – quite the opposite.

Paying for Twitter?

A third idea that has come up is that we should have to pay for twitter – a nominal sum has been mentioned, at least nominal to relatively rich people in countries like ours – but this is another idea that I don’t like at all. The strength of Twitter is its freedom, and the power that it has to encourage debate would be much reduced if it were to require payment. It could easily become a ‘club’ for a certain class of people – well, more of a club than it already is – and lose what makes it such a special place, such a good forum for discussion.

Things like the ‘Spartacus’ campaign against the abysmal actions of our government towards people with disability would be far less likely to happen if Twitter cost money: people on the edge, people without ‘disposable’ income or whose belts have already been tightened as far as they can go would lose their voice. Right now, more than ever, they need that voice.

Dealing with the real issues…

In the short term, I think Criado-Perez had the best idea – we need to do everything we can to ‘stand together’, to support the victims of abuse, to make sure that they know that the vast, vast majority of us are on their side and will do everything we can to support them and to emphasise the ‘good’ side of Twitter. Twitter can be immensely supportive as well as destructive – we need to make sure that, as much as possible, we help provide that support to those who need it.

The longer term problem is far more intractable. At the very least, it’s good that this stuff is getting more publicity – because, as I said, it matters very much. Misogyny and the ‘rape’ culture is real. Very real indeed – and deeply damaging, not just to the victims. What’s more, casual sexism is real – and shouldn’t be brushed off as irrelevant in this context. For me, there’s a connection between what John Inverdale said about Marion Bartoli, and what Boris Johnson said about women only going to universities to find husbands, and the sort of abuse suffered by Criado-Perez,  Creasy, Beard and others. It’s about the way that women are considered in our society – about objectifying women, trivialising women, suggesting women should be put in ‘their’ place.

That’s what we need to address, and to face up to. No ‘report abuse’ button is going to solve that. We also need to stop looking for scapegoats – to blame Twitter for what is a problem with our whole society. There’s also a similarity here with David Cameron’s porn filter. In both situations there’s a real, complex problem that’s deep-rooted in our society, and in both cases we seem to be looking for a quick, easy, one-click solutions.

One click to save us all? It won’t work, and suggesting that it would both trivialises the problem and could distract us from finding real solutions. Those solutions aren’t easy. They won’t be fast. They’ll force us to face up to some very ugly things about ourselves – things that many people don’t want to face up to. In the end, we’ll have to.

My porn-blocking blog post got porn-blocked!

Screen Shot 2013-07-26 at 08.35.38Just to make the point about porn-blocking filters even more concrete, I’ve discovered that my blog post on porn-blocking has been automatically blocked by Strathmore University’s system (thanks to @LucyPurdon for pointing it out). Strathmore University is in Kenya, and I don’t know much about it, but the implication of the message is clear: the blog post was blocked because the system saw too many mentions of the word pornography – I’m still not clear about the proxies issue, though.

What does all this imply? Well, it shows the limitations of an automated system: analysing my blog post would indeed find I mention the word ‘pornography’ rather a lot – appropriately, as I’m discussing how we deal with pornography on the net – but it certainly doesn’t make the post pornographic. Any automated system will have that kind of a limitation… and will therefore block a whole swathe of material that is educational, informative and directly relevant to important issues. Automatically block things this way and you will drastically reduce access to information about crucial subject – sex is just one of them. Cutting down access to information, as well as all the freedom of speech issues, will leave kids less well informed, and less able to deal with these issues. Education is the key – and filters will and do(!) reduce that.

One key thing to note: the Strathmore University system is at least transparent – it tells you why a site is blocked, which might at least give you some way to get around it. Many systems (for example the way that many ISPs implement the IWF’s blacklist) are not transparent: you don’t know why you can’t get access to a site, either getting a ‘site not found’ message or even nothing. With those systems, there’s even more of a problem – and I have a feeling that those are the systems that David Cameron is likely to push….

Porn-blocking filters not only don’t work in their own terms, they’re actually damaging!

There’s no ‘silver bullet’ for porn….

Werewolf attack jumpI was lucky enough to be on Radio 4’s ‘The Media Show’ yesterday, to talk about Cameron’s porn-blocking plans: I think I was invited as a result of my blog post from Monday, asking 10 questions about the plan. I didn’t have much time – and I’m still very much an amateur on the radio – and though I think I managed to get across some of what I wanted to say, I didn’t get close to persuading the other person talking about the subject – Eleanor Mills, of the Sunday Times. I think I know why: she’s in many ways correctly identified the monster that she wants to slay, and she thinks that she’s found the silver bullet. The problem is, for porn, there IS no silver bullet. It’s not that simple.

The solution that she suggested – and she said that ‘the man from Google’ told her it was possible – was a simple ‘switch’ to turn a ‘porn filter’ on or off. If you wanted to see ‘restricted’ material for some justified reason (e.g. to look at material for sex education purposes) you could turn it on, and you’d be asked a question in a pop-up, something like ‘Do you want to look at this for research purposes?’. You’d click OK, look at the stuff, then turn the filter back on. Simple. Why not do it?

It doesn’t really take a technical expert to see the flaws in that plan even if it was possible to create such a switch – how it wouldn’t stop viewing stuff for bad reasons (who’s going to be honest when asked why you want?), how it avoids the fundamental question of how you define ‘porn’, and all the other crucial issues that I mentioned in my other blog. That’s not to mention the technical difficulties, the problem of over-censorship and under-censorship, of the way that the really bad stuff will avoid the filters anyway – let alone the even more fundamental issues of free speech and the need to be able to access information free of fetters or limitations…. There are so many flaws in the plan that it’s hard to know where to start – but it’s easy to see the attraction of the solution.

We all want to find easy solutions – and computerised, technical solutions often promise those kinds of easy solutions. Porn, however, is not amenable to easy solutions. It’s a complex subject – and sadly for those looking for silver bullets, it needs complex, multifaceted solutions that take time, effort and attention.

We do, however, know what a lot of those solutions are – but they’re not really politically acceptable at the moment, it seems. We know, for example, that really good sex and relationships education helps – but the government recently voted down a bill that would make that kind of education compulsory in schools. The ‘traditional’ education favoured by Michael Gove and the Daily Mail has no truck with new-fangled trendy things like that, and the puritanical religious approach still claims, despite all the evidence, that ignorance of sexual matters is bliss. It isn’t. Better education is the key starting point to helping kids to find their way with sex and relationships – and to make the ‘poisonous’ influence of ‘bad’ porn (which, it must be remembered, is generally NOT illegal) the kind of thing that Eleanor Mills justifiably wants to deal with. If she really wants to help, she should be fighting the government on that, not pushing technical, magical solutions that really won’t work.

The next stage is putting more resources – and yes, that means money – into the solutions that we know work well. The IWF in dealing with child abuse images. CEOP in dealing with sex-offenders online activities. Work on a targeted, intelligent level. The experts know it works – but it’s hard work, it’s not headline-grabbing, and it’s not ‘instant’. What’s more, it’s not cheap.

The other part of the jigsaw for me, is to start having a more intelligent, more mature and more honest debate about this. If the politicians didn’t go for soundbite solutions without talking to experts, but actually listened to what people said, this might be possible. Sadly, with the current lot of politicians on pretty much every side, that seems impossible. This isn’t a party-politcal issue: Labour are every bit as bad as the Tories on this, with Helen Goodman a notable offender. It’s an issue of politicians being unwilling to admit they don’t understand, and unwilling to take advice that doesn’t fit with their ‘world view’. It’s an issue of the corrosive influence of hypocritical and puritanical newspapers like the Daily Mail on the one hand calling for internet porn bans and on the other parading their ‘sidebar of shame’ complete with images and stories that objectify women and girls to an extreme.

The one saving grace here is that the solution they suggest simply won’t work – and eventually they’ll realise that. In Australia, a similarly facile solution was tried, only to be ignominiously abandoned a few years later. If only that lesson was the one from Australia that Lynton Crosby managed to get across to David Cameron….

10 questions about Cameron’s ‘new’ porn-blocking

There’s been a bit of a media onslaught from David Cameron about his ‘war on porn’ over the weekend. Some of the messages given out have been very welcome – but some are contradictory and others make very little sense when examined closely. The latest pronouncement, as presented to/by the BBC, says

“Online pornography to be blocked automatically, PM announces”

The overall thrust seem to be that, as Cameron is going to put in a speech:

“Every household in the UK is to have pornography blocked by their internet provider unless they choose to receive it.”

So is this the ‘opt-in to porn’ idea that the government has been pushing for the last couple of years? The BBC page seems to suggest so. It suggests that all new customers to ISPs will have their ‘porn-filters’ turned on by default, so will have to actively choose to turn them off – and that ‘millions of existing computer users will be contacted by their internet providers and told they must decide whether to activate filters’.

Some of this is welcome – the statement about making it a criminal offence to possess images depicting rape sounds a good idea on the face of it, for example, for such material is deeply offensive, though quite where it would leave anyone who owns a DVD of Jodie Foster being raped in The Accused doesn’t appear to be clear. Indeed, that is the first of my ten questions for David Cameron.

1     Who will decide what counts as ‘pornography’, and how?

And not just pornography, but images depicting rape? Will this be done automatically, or will there be some kind of ‘porn board’ of people who will scour the internet for images and decide what is ‘OK’ and what isn’t? Automatic systems already exist to do this for child abuse images, and by most accounts they work reasonably well, but they haven’t eradicated the problem of child abuse images. Far from it. If it’s going to be a ‘human’ system – perhaps an extension of the Child Exploitation and Online Protection Centre (CEOP) – how are you planning to fund it, and do you have any idea how much this is going to cost?

2     Do you understand and acknowledge the difference between pornography, child abuse images and images depicting rape? 

One of the greatest sources of confusion over the various messages given out over the weekend has been the mismatch between headlines, sound bites, and actual proposals (such as they exist) over what you’re actually talking about. Child abuse images are already illegal pretty much everywhere on the planet – and are hunted down and policed as such. As Google’s spokespeople say, Google already has a zero-tolerance policy for those images, and has done for a while. Images depicting rape are another category, and the idea of making it illegal to possess them would be a significant step – but what about ‘pornography’. Currently, pornography is legal – but it comes in many forms, and is generally legal – and to many people have very little to do with either of the first two categories…. which brings me to the third question

3     Are you planning to make all pornography illegal?

…because that seems to be the logical extension of the idea that the essential position should be that ‘pornography’ should be blocked as standard. That, of course, brings up the first two questions again. Who’s going to make the decisions, and on what basis? Further to that, who’s going to ‘watch the watchmen’. The Internet Watch Foundation, that currently ‘police’ child abuse images, though an admirable body in many ways, are far from a model of transparency (see this excellent article by my colleague Emily Laidlaw). If a body is to have sweeping powers to control content is available – powers above and beyond those set out in law – that body needs to be accountable and their operations transparent. How are you planning to do that?

4     What about Page 3?

I assume you’re not considering banning this. If you want to be logically consistent – and, indeed, if you want to stop the ‘corrosion of childhood’ then doing something about Page 3 would seem to make much more sense. Given the new seriousness of your attitude, I assume you don’t subscribe to the view that Page 3 is just ‘harmless fun’…. but perhaps you do. Where is your line drawn? What would Mr Murdoch say?

5     What else do you want to censor?

…and I use the word ‘censor’ advisedly, because this is censorship, unless you confine it to material that is illegal. As I have said, child abuse images are already illegal, and the extension to images depicting rape is a welcome idea, so long as the definitions can be made to work (which may be very difficult). Deciding to censor pornography is one step – but what next? Censoring material depicting violence? ‘Glorifying’ terrorism etc?  Anything linking to ‘illegal content’ like material in breach of copyright? It’s a very slippery slope towards censoring pretty much anything you don’t like, whether it be for political purposes or otherwise. ‘Function creep’ is a recognised phenomenon in this area, and one that’s very difficult to guard against. What you design and build for one purpose can easily end up being used for quite another, which brings me to another question…

6     What happens when people ‘opt-in’?

In particular, what kind of records will be kept? Will there be a ‘list’ of those people who have ‘opted-in to porn’? Actually, scratch that part of the question – because there will, automatically be a list of those people who have opted in. That’s how the digital world works – perhaps not a single list, but a set of lists that can be complied into a complete list. The real question is what are you planning to do with that list. Will it be considered a list of people who are ‘untrustworthy’. Will the police have immediate access to it at all times? How will the list be kept secure? Will is become available to others? How about GCHQ? The NSA? Have the opportunities for the misuse of such a list been considered? Function creep applies here as well – and it’s equally difficult to guard against!

7     What was that letter to the ISPs about?

You know, the letter that got leaked, asking the ISPs to keep doing what they were already doing, but allow you to say that this was a great new initiative? Are you really ‘at war’ with the ISPs? Or does the letter reveal that this initiative of yours is essentially a PR exercise, aimed at saying that you’re doing something when in reality you’re not? Conversely, have you been talking to the ISPs in any detail? Do you have their agreement over much of this? Or are you going to try to ‘strong-arm’ them into cooperating with you in a plan that they think won’t work and will cost a great deal of money, time and effort? For a plan like this to work you need to work closely with them, not fight against them.

8     Are you going to get the ISPs to block Facebook?

I have been wondering about this for a while – because Facebook regularly includes images and pages that would fit within your apparent definitions, particularly as regards violence against women, and Facebook show no signs of removing them. The most they’ve done is remove advertisements from these kinds of pages – so anyone who accesses Facebook will have access to this material. Will the default be for Facebook to be blocked? Or do you imagine you’re going to convince Facebook to change their policy? If you do, I fear you don’t understand the strength of the ‘First Amendment’ lobby in the US… which brings me to another question

9     How do you think your plans will go down with US internet companies?

All I’ve seen from Google have been some pretty stony-faced comments – but for your plan to work you need to be able to get US companies to comply. Few will do so easily and willingly, partly on principle (the First Amendment really matters to most Americans), partly because it will cost them money to do so, and partly because it will thoroughly piss-off many of their American customers. So how do you plan to get them to comply? I assume you do have a plan…

10     Do you really think these plans will stop the ‘corrosion’ of childhood?

That’s my biggest question. As I’ve blogged before, I suspect this whole thing misses the point. It perpetuates a myth that you can make the internet a ‘safe’ place, and absolves parents of the real responsibility they have for helping their kids to grow up as savvy, wary and discerning internet users. It creates a straw man – the corrosion of childhood, such as it exists, comes from a much broader societal problem than internet porn, and if you focus only on internet porn, you can miss all the rest.

Plans like these, worthy though they may appear, do not, to me, seem likely to be in any way effective – the real ‘bad guys’ will find ways around them, the material will still exist, will keep being created, and we’ll pretend to have solved the problem – and at the same time put in a structure to allow censorship, create a deeply vulnerable database of ‘untrustworthy people’, and potentially alienate many of the most important companies on the internet. I’m not convinced it’s a good idea. To say the least.

The name’s Snowden. Edward Snowden

Snowden

I was asked today whether I thought that Edward Snowden was a one-off, or whether there were more whistleblowers waiting in the wings, and he was the first of many. ‘Of course,’ I said, without even thinking, ‘many, many more.’

It was only afterwards that I thought about why I believe that – because I do believe it. There are many factors, all of which contribute to the likelihood of further whistleblowers, leakers, ‘spies’, or whatever you want to call them.

You need secrets

Whistleblowers need something to blow the whistle about – and, to be frank, there’s plenty more where PRISM came from. If anyone thinks that Snowden has leaked everything that can be leaked in relation to the activities of the NSA, GCHQ and so forth, they’re being very naive. There are lots more secrets where they came from. Indeed, since the first revelations a whole lot more have emerged, and not just from the US. An equivalent French programme, ‘le Big Brother français’ was leaked to Le Monde and allegations of collaboration between the security services in the Netherlands and the US were just two examples: both leaked by people other than Snowden, but apparently inspired by him.

You need ‘bad guys’

The NSA fits the bill here – an almost nameless (‘No Such Agency’) group of faceless spooks, spying on everyone, accountable to no-one. They’re classical villains in spy movies: they’re the ‘State’ in ‘Enemy of the State’, the CIA cell hunting down Jason Bourne and so on. What’s more, their villainous nature has broadened to encompass pretty much the whole of the US government – Obama’s personal involvement has ensured that.

You need inspirations

Polls in the US have suggested there’s a deep split in opinion about Snowden – but to be an inspiration he doesn’t have to be considered a hero by the majority of Americans. He doesn’t even have to be considered a hero by a significant minority of Americans – he has to be considered a hero by enough of the right kind of people. I think he is. In the hacker community his status seems pretty assured – and that’s probably enough.

What’s more, the treatment of Snowden by the US authorities has cemented that status. The way they treated him has made him look like the hero of a spy movie – chasing him from one exotic location to another, causing diplomatic rows by seemingly forcing a diplomatic plane to be diverted and grounded and so on. Perhaps he’s not James Bond, but there are certainly echoes Jason Bourne in his story.

Of course there are arguments that can be made in support of the severity of the response – but would it really put off further whistleblowers? Will they be deterred by the way that Snowden is being hounded? It doesn’t seem likely – the sort of people to make the kind of carefully calculated rational decisions needed to be deterred are not likely whistleblowers anyway. It’s more likely that they will be inspired. Did the abysmal treatment of Bradley Manning by the US authorities deter Snowden? The opposite – they inspired him, made him feel that what he was doing was worthwhile. He quoted the treatment of Manning as one of the reasons that he felt he had to blow the whistle.

In most ways, to me it looks as though the US has done pretty much exactly the wrong thing in relation to Snowden. They’ve made him a cult figure, someone whose name will be remembered in hacker circles for a generation – and is likely to inspire further whistleblowers and hackers.

You need potential whistleblowers

…and that’s the real rub. There are plenty of them. The NSA and their equivalents will be employing nerds, hackers, programmers, whatever you choose to call them, and they’ll be employing a lot of them. What’s more, given the nature of the field, they’ll probably be using third parties to do a lot of the work for them – just as they did in with Booz Allen Hamilton in the case of Snowden. That means they can’t possibly be sure that they’re not employing another potential whistleblower. The people doing the work won’t be ‘career spooks’, deeply loyal to their nation and their agency, ready to give their all, regardless of anything else – those kinds of people are far more the myths of movies than heroes like Bond or Bourne. The people doing the real work will be much more ‘normal’ than that.

So all the pieces of the jigsaw are in place. Snowden wasn’t the first such whistleblower – and he certainly won’t be the last. The authorities need to understand that. Just as we need to adjust ourselves to the fact that we’re being watched all the time, they need to adjust themselves to the reality that their secret plans will almost certainly be leaked.

As I’ve said before, there’s only one sure way to stop your evil plans from being exposed – and that’s not to have evil plans in the first place. Sadly it’s pretty certain that won’t be the solution that the NSA and others find….

Guest Post: Asking the wrong questions?

[Guest post by @Super__Cyan]

Wrong Question

Has the Stop and Search Consultation made a glaring oversight regarding a particular question asked? Does it overlook the crucial question, that being whether the power itself to stop and search without reasonable grounds is sufficient to satisfy the United Kingdom’s obligations under the European Convention on Human Rights?

The key question is Q6, in relation to s.60 Criminal Justice and Public Order Act 1994 (particularly s.60(5)) which notes that:

“To what extent do you agree or disagree that the ‘without reasonable grounds’ stop and search powers described in the paragraphs above are used by police in a way which effectively balances public protection with individual freedoms?(page 8)

This issue arises because it asks about the use of that power rather than the power itself. The question implies that such a power may be acceptable on the condition that it effectively balances public protection with individual freedom. Is the very premise of that question missing the point? To answer it in the positive or negative would accept from the outset the use of stop and search without reasonable grounds as being acceptable.

Did the United Kingdom forget about Gillan and Quinton? Gillan and Quinton v United Kingdom concerned the lawfulness of stop and search powers under terrorism legislation. The applicants primarily argued that these laws violated their Article 8 rights. Article 8 of the European Convention of Human Rights (ECHR) stipulates that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European Court of Human Rights (ECtHR) concluded that stop and searches in the present case interfered with Article 8 (at para 65). The argument is that stop and search powers under s.60 (although are slightly different in form to s.44) apply a fortiori and therefore would too amount to an interference with Article 8. Once interference has been established it is necessary to move on to Article 8(2), as interference has to first be ‘in accordance with the law’ which requires some basis in domestic law for the power exercised.

This requirement can be further subdivided into what the ECtHR regards as ‘the quality of the law’(para 63) which needs to be compatible with the rule of law this requires the law to be accessible to the person concerned and foreseeable as to its effects (para 50). Publication (para 52-53) of the relevant law goes a long way in satisfying the ‘accessibility’ requirement which is the case with s.60. The foreseeable rule requires the law to be formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate their conduct (para 56). It is difficult to envisage how someone can regulate their conduct if a search can occur irrespective of conduct and on grounds that do not need to exist or even be aired.

In Gillan the ECtHR stressed the importance of laws being in accordance with the law to protect against arbitrary interferences by public authorities (para 77). When rightly finding a violation of Article 8 the ECtHR noted that:

Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched.(para 83)

The ECtHR was also struck by the statistical evidence showing the abuse and misuse of the s.44 powers and accepted there was a clear risk of arbitrariness in the grant of such a broad discretion to the police officers (para 84-85). Possibly the most essential sentence of the judgment is as follows:

[I]n the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised. (para 86)

The ECtHR concluded that the relevant provisions were not in accordance with the law, which ultimately meant the stop and search powers failed at the first legal hurdle under Article 8(2). Academics have tended to agree with the ECtHR: Gray, providing a comparative perspective with Australia has argued that the police should be required to show ‘reasonable suspicion’ as a basis for conducting a search, rather than arbitrarily conducting searches on anyone they choose. This would, to a far greater degree effectively balance public protection with individual freedoms. J. Miller, N. Bland and P. Quinton recommended that s.60 needs to be considered carefully given their likely impact on community confidence and inefficiency at producing arrests. They also demonstrated that these searches are actually far less successful at producing arrests.

They also pointed out that officers were ‘more ready to search people under this power where evidence was not strong': this clearly demonstrates the risk of arbitrariness the ECtHR were all too concerned about (for instance, searching more white people just to even up the number of searches on black and Asians. More recently Her Majesty’s Inspectorate of Constabulary raised concern regarding s.60 as they uttered ‘establishing a belief that is ‘reasonable‘is therefore of utmost importance.

What’s the conclusion? Well, perhaps question six should be redrafted to an extent which would give respondents the opportunity from the outset to consider whether the law itself is efficient because as pointed out there are serious concerns regarding stop and search without reasonable grounds in terms of legality and efficiency. Forcing them to accept question six in its current form is not a healthy way to debate such a serious issue. Furthermore, it would be better this way to urge Parliament to alter this provision rather than testing their luck in the courts. So it is suggested question six could be more appropriate and useful if it was redrafted to:

“To what extent do you agree or disagree that the ‘without reasonable grounds’ stop and search powers described in the paragraphs above effectively balances public protection with individual freedoms?(Please give reasons)”

And as Dr Lanning would say:

The new University Law degree, Boris Johnson style

We at the UEA, would  like to let it be known that we offer the perfect law course for any women who, as Boris Johnson suggests, is coming to university primarily to catch and marry Mr Right.

There are many elements to that law degree, each of which can help you in this task – and help you to deal with the many problems that can occur in the process. Each has a part to play – and don’t forget that it’s not just about catching your man!

Tort Law – Whom to sue when he lets you down for misrepresentation

Contract Law – How to keep him for life

Criminal Law – What to do if Mr ‘Right’ takes a ‘playful tiff’ too far

Family Law – How to ditch him when he turns out to be Mr Wrong

Constitutional Law – Crucial, if you’re lucky enough to snare someone in line for the throne

EU law – What happens if Mr Right is a johnny foreigner?

Law and medicine – The ethical issues of tending to Mr Right’s wounded pride

Trust Law – How to turn all those empty promises into real money

Company Law – Understanding what Mr Right does all day in the City

Commercial Law – What’s yours is his, what’s his stays his

Land Law – How to sell your flat when it’s time to move in with Mr Right

Competition Law – What to do when you’re two-timed, and how to deal with unfair competition.

Employment law – Knowing what to do when your nanny or housecleaner calls in sick

Internet Law – When and how you can find out what he’s doing online

Media Law – How to get that key injunction when the paparazzi catch Mr Right out

It’s everything you need – who could possibly want more? It’s not as though women want education for any other reason.

The course texts will include regular subscriptions to Vogue, Cosmopolitan and Good Housekeeping, as well as ‘Men are from Mars, Women are from Venus’.

*Errr… in case you didn’t realise, this is a joke….

**This post inspired by the excellent David Mead, with contributions from others in the Law School at the UEA.

Labour: time for a new ‘third way’?

The Falkirk row doesn’t look at all comfortable for Ed Miliband and Labour. Accusation and counter-accusation, a crucial resignation and now the police involved – but more important, perhaps, that the details, it asks huge questions about the current and future direction of Labour. Are they, as some sections of the media would have it, still in thrall to those ancient dinosaurs the unions? Or are they, as many on the left would suggest, little more than a ‘Tory-lite’ party, run by former Blairites and career politicians only in it for themselves: Tories with red ties.

On the surface, both claims seem to have substance. UNITE is clearly attempting to have an influence on Labour policy. So is Progress. Both have strong voices and strong reasons to do so. There are articulate, clever, politically-able people on both sides of the debate. ‘Remember your history’ say those on the side of the unions, ‘remember how you lost all those elections’ say those on the side of Progress, ‘and how Blair won all his’. Which way will Ed Miliband lean?

And yet, are those really the only two options? ‘Kow-towing’ to the unions, or ‘selling your soul’ to the corporates?

Perhaps it is time for Ed to find his own ‘third way’. Perhaps he could remember Labour’s history – but from a slightly different angle. Remember not just that Labour emerged from the unions – but why it was necessary for it to emerge from the unions. It didn’t emerge in that way because the unions were hungry for power – or even greedy for power – but because the people that the unions represented had no voice in politics. It emerged to provide an alternative to the existing powers: an alternative view and an alternative future.

Even a cursory look at today’s politics suggests that there are parallels with that situation now. The three main political parties are far too similar – and effectively represent the same kind of people and have the same outlook. They all offer the same ‘solution’ to the current crisis – the austerity ‘solution’ which doesn’t really seem to be a solution at all. No alternative is offered – and that provides the opportunity for a third way. Vast groups of people are suffering hideously – and seem to have no way to stop that, and no voice speaking for them.

What does that mean? Well, it means finding a way to support these people, and to find an alternative way. Ed doesn’t need to be in thrall to the unions – but he does need to understand how badly people are suffering, and to find a way to help them. And helping them wouldn’t mean that he was kow-towing to the unions – he should, for example, have opposed the Workfare programme NOT because the unions ‘told’ him to, but because it was a hideous and damaging programme. He should oppose many of Mr Gove’s ‘reforms’ of the education system NOT because the teaching unions tell him to – but because they’re retrograde, counter-productive and demoralising to the whole education system. There are parallels in many, many different areas.

If Labour can find this way – start being more active in opposing the false ‘strivers vs scroungers’ agenda, stop trying to match the Tories cut-for-cut in the austerity drive, then not only would Labour be a more distinctive and coherent party, they would also have a chance to be more independent of the unions…. because the unions would have both less desire and less need to interfere, to try to ‘influence’ policy or even candidate selection. Their members would feel less disenfranchised – and would feel Labour was more on their side. That’s what they want, I suspect. Some may be after power for power’s sake – but most just want to feel that they haven’t been abandoned, that what’s happening to them is being taken seriously. Right now, it doesn’t look as though it is. Politics looks as though it’s for the politicians, that’s all.

Will it happen? I doubt it very much. Right now the Labour Party looks as though it’s trapped – and that the ‘no alternative’ route will be taken. Finding the nerve, the guts to change that seems to be beyond the current Labour Party. They may still ‘win’ the election – but that ‘win’ would be next to meaningless for almost all of us.

This Falkirk furore, however, does offer an opportunity – at the very least for a reassessment of where Labour are, and what the alternatives are. If Ed Miliband asks the right questions, if he’s aware enough to ask not only what UNITE and others have done but why they might have felt it necessary to do it, there might be a chance that he could find his own third way. I hope he does.

Help us Obi-Wan Tom Watson, you’re our only hope!

Obi wanThe news that Labour MP Tom Watson has resigned from his position as Ed Miliband’s general election coordinator has provoked a lot of reactions – some surprise or even shock, some sadness, even some glee. From one particular perspective, however, Ed Miliband’s loss could be our gain: he could be crucial in the fight against internet surveillance. Indeed, if Labour win the election in 2015 – and despite the problems that the Labour Party have, that’s still a distinct possibility – he could be our only hope.

The Labour Party has a lot of problems over internet surveillance and privacy, as it has over many civil liberties issues. Under Tony Blair and Gordon Brown its record was pretty disastrous, from the attempted introduction of ID cards to the ‘Interception Modernisation Programme’ that was the precursor to the Communications Data Bill – the ‘Snoopers’ Charter’. Surveillance seems to bring out the worst of the Labour Party’s authoritarian tendencies – and the ‘war on terror’ makes this even worse. A whole series of Labour Home Secretaries, from David Blunkett to Alan Johnson, succumbed to these tendencies in increasingly depressing ways – and in direct contradiction to the idealism that brought about such things as the Human Rights Act.

Labour badly needs to change this position – and beneath it all, I think many people in the Labour Party realise that. Sadiq Khan, the Shadow Secretary of State for Justice, recently said that:

“I believe our rights as citizens are under attack, and that it falls to Labour to be the defender of these rights.”

Khan is right – but he needs to realise that one of the many ways that our rights as citizens are under attack is through the internet surveillance programme – both the legal plans built into the Snoopers’ Charter and the practical ones that seem to have been in action for a while by GCHQ through their Tempora programme and through their cooperation with the NSA’s PRISM. Labour, if they are to be, as Khan puts it, the defender of our rights, needs to find a way to reposition itself as opposed to internet surveillance.

That’s where Tom Watson comes in. In his resignation letter he says the following:

“I wish to use the backbenches to speak out in areas of personal interest: open government and the surveillance state, the digital economy, drones and the future of conflict, the child abuse inquiries, the aftermath of the Murdoch scandal and grass roots responses to austerity.” (emphasis added)

Tom Watson gets it. He understands the internet – and he understands privacy. He has spoken out about the Snoopers Charter already (see here, for example) and though the current anti-surveillance climate after the PRISM revelations means that it’s not coming back very soon, as I’ve blogged before these measures have a tendency to re-emerge. This will – and it will need to be fought. As a back bencher, Tom Watson will have both the time and the opportunity to go against the authoritarian grain of Labour’s policies over surveillance. He can be a voice – and a strong and powerful one – that helps explain the reality of internet surveillance, its impact on people, and the ways in which it infringes our rights, not just theoretically but in practice. Labour has not had such a voice in its party over recent years – and it shows. The other main parties do have such MPs – David Davis for the Tories, Julian Huppert for the Lib Dems – and those MPs were crucial in the fight against the Snoopers’ Charter, raising awareness amongst their fellow MPs amongst other things.

…and awareness matters. One of the key characteristics of MPs when dealing with these issues, sadly, has been that they simply don’t understand the internet. Helen Goodman MP, the Shadow Minister who seems to be the most regular spokeswoman for the Labour Party on internet-related issues has demonstrated time and again that she simply doesn’t get it (see this blog by Terence Eden for an example). That level of lack of understanding is all too apparent pretty much every time internet surveillance is mentioned. If we are to get sensible decisions – sensible rights-based decisions – that ignorance has to be overcome. Talking from the back benches, lobbying from the back benches, Tom Watson has a chance to change that, and to drag the Labour Party into the internet age. It may not be a great chance – the level of ignorance is immense, and the vested interests in the security lobby of such Labour heavyweights as John Reid are pretty powerful – but it is still worth a try.

Help us, Obi-Wan Tom Watson, you’re our only hope….