[HN Gopher] Victory at the High Court against the government's u... ___________________________________________________________________ Victory at the High Court against the government's use of 'general warrants' Author : mpweiher Score : 244 points Date : 2021-01-08 13:09 UTC (9 hours ago) (HTM) web link (privacyinternational.org) (TXT) w3m dump (privacyinternational.org) | noodlesUK wrote: | Surely we don't actually use general warrants in the UK as legal | justification for all the shit that we surveil? Does RIPA not | give a huge statutory list of what can be done (pretty much | everything is fair game)? | pmyteh wrote: | This was a case about hacking, rather than surveillance. That's | not authorised by RIPA, but under earlier 1994 legislation, and | needs a specific warrant from the Secretary of State. | arethuza wrote: | Nitpick: I believe it is the High Court of England and Wales, not | the High Court of the UK. The High Court in Scotland is the top | level criminal court with the equivalent to the High Court of | England and Wales being the Court of Session... | lawtalkinghuman wrote: | This is correct, though I suspect the UK government aren't | going to try and disobey the ruling just in Scotland. | that_guy_iain wrote: | I would assume they'll appeal and go to Supreme Court then | the ruling would apply everywhere in the UK. But even then | GCHQ is in England wouldn't their actions fall under English | law? | mtgx wrote: | This is kind of hilarious, considering one of the top (public) | reasons why David Cameron and Theresa May have been supporting | Brexit is so that UK no longer has to abide by the EU Charter of | Fundamental Rights, because the top EU court has slapped down the | UK's mass surveillance regime a couple of times. | [deleted] | SEMW wrote: | That was the European Court of Human Rights. It's not a 'top EU | court', or an EU court of any sort. It's a body of the Council | of Europe, which is an entirely different institution (with a | much larger international membership than the EU). It enforces | the European Convention on Human Rights. | | (the EU does requires members to be CoE members, and so there | were some people suggesting that after leaving the EU the UK | might also leave the CoE - possibly including theresa may, I | haven't checked - but that doesn't currently seem likely to | happen) | | The EU Charter of Fundamental Rights is definitely a thing - | basically a copy of the ECHR into EU law - but it's only | applicable (1) to actions of EU institutions, (2) as a | restriction on EU legistation, and (3) as an obligation on | member states _when interpreting / implementing EU law_. It has | no relevance to UK law other than that. (And what little | relevance it would have had to the UK was further weakened | since they had a partial opt-out to it that tried to get rid of | the last of those for the UK!). | | The cases about UK surveillance legislation (eg [0]) were all | ECtHR, not CJEU. | | [0] | https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&... | LatteLazy wrote: | It's worth noting that unlawfully (illegally) collected evidence | is still admissible in UK courts (with exceptions). So this | ruling may make little real difference... | simonh wrote: | The courts are basically saying ok, fine, you can have a general | warrant, however the legislation would have to specifically | authorise the scope of the warrant. But the whole point of | general warrants is to not have to specify the scope. | | That basically makes general warrants worthless, because it seems | like you'd have to anticipate the specific details needed in the | warrant and put that in the law authorising the warrant. In | practice that probably means specific details like the names of | the people, places and property subject to the warrant. Clearly | that's not practical to put in law, but how else do you ensure | that a general warrant applies in any specific case? It's a | subtle but beautiful Judicial FU. | andybak wrote: | For country specific things (US included) can we put the country | in the post title? I guessed this was UK but many people won't. | GordonS wrote: | Is anyone aware of an authoritative source detailing specific | instances of where "general warrants" have been misused, and how? | | I know in general about what came out after Snowden of course, | I'm just interested to learn more about specifics relating to | these warrants. | mmhsieh wrote: | This goes back farther than you are likely asking for, but | general warrants were called out in the U.S. bill of rights and | were alluded to in the declaration of independence because the | British crown had been using them to investigate smugglers and | tax dodgers, especially in the northeastern American colonies. | LatteLazy wrote: | The bulk collection by intelligence agencies of phone and | Internet data is the biggest example of a general warrant. | There are more specific examples like when police demand the ID | of everyone who's cell phone providers place them at a protest | (aka GeoFences) or the details of everyone who searched for | certain terms. | hedora wrote: | This is a start: | | https://www.eff.org/issues/privacy | boomboomsubban wrote: | Imagine a murder happened. A judge issues you a general warrant | to search for anything suspected as evidence regarding the | case. You now can now search anyone anywhere. | unanswered wrote: | So it appears that as of now, general warrants are disallowed in | the UK and (in practice) permitted in the US. America's founding | fathers are spinning in their graves. | DamnYuppie wrote: | The foundering fathers did their part. We as the inheritors | have failed miserably in holding onto the freedoms that were | gifted to us. | willcipriano wrote: | Thomas Jefferson said it best: | | "The question Whether one generation of men has a right to | bind another, seems never to have been started either on this | or our side of the water... (But) between society and | society, or generation and generation there is no municipal | obligation, no umpire but the law of nature. We seem not to | have perceived that, by the law of nature, one generation is | to another as one independant nation to another... On similar | ground it may be proved that no society can make a perpetual | constitution, or even a perpetual law. The earth belongs | always to the living generation... Every constitution, then, | and every law, naturally expires at the end of 19. years. If | it be enforced longer, it is an act of force and not of | right." | [deleted] | AnthonyMouse wrote: | The other side of this is Chesterton's Fence: | | https://en.wikipedia.org/wiki/G._K._Chesterton#Chesterton's | _... | | If your forefathers were willing to die for something, | better fully understand why before you try to get rid of | it. | willcipriano wrote: | From a Chesterton's Fence perspective think about the | ability of the people to hold a amendatory convention. | | If you don't know, a amendatory convention can be | achieved by having two thirds of the state legislatures | vote for one. If that happens then you must get a two | thirds majority of states to agree on the proposal | presented and it becomes a constitutional amendment. | Entirely side stepping the federal government. | | This power hasn't been used in a very long time, and from | my readings of Washington and Jefferson they intended us | to use it. Perhaps this is a corollary to Chesterton's | Fence, call it Chesterton's Button rephrased less | elegantly than he or you put it: "If your forefathers | were willing to die to give you the ability to do | something, you should question if that ability has not | used in a very long time." | jkaplowitz wrote: | > If you don't know, a amendatory convention can be | achieved by having two thirds of the state legislatures | vote for one. If that happens then you must get a two | thirds majority of states to agree on the proposal | presented and it becomes a constitutional amendment. | | The required majority to approve the output of the | convention is 3/4 of the states, not the same 2/3 as to | call the convention in the first place. | | > Entirely side stepping the federal government. | | The entity that is required to call the convention once | 2/3 of the states have requested it is the federal | Congress, so they are not entirely side stepped. But, it | is true that they are not allowed to refuse to call the | convention in this situation. There is nothing in the | Constitution, any federal statute, or any court ruling | that addresses what happens if Congress doess not do so. | | > This power hasn't been used in a very long time | | It's never been used successfully, although it's been | attempted at least once by every state except Hawaii. | (Some attempts were indirectly successful in achieving | their goal, by spurring Congress to propose the desired | amendments.) | PoachedSausage wrote: | That might have been true in Jefferson's day, lifespans | were shorter. Now most western democracies are effectively | gerontocracies, the young are bound to the wishes of the | old. See Brexit. | function_seven wrote: | Lifespans weren't that much shorter in his day (provided | you made it to 5 years old). | | He's not describing something that is "true" or not, but | rather what ought to be. I think it's just as relevant | today as when he wrote that. | PoachedSausage wrote: | I agree that it ought to be that way, however those with | power tend to want to hang on to it. How do you solve it? | The US has a term limit for the President, but you can | stay in Congress/Senate/Parliament for life if re- | elected. | [deleted] | Melting_Harps wrote: | > but you can stay in Congress/Senate/Parliament for life | if re-elected. | | It gets even worse when you look at the actual approval | ratings and re-election numbers, this a system created to | serve career politicians and nothing more. When you see | the approval rating is in the lows 30s, abut approval | rates are in the 90s, something is definitely wrong as in | need of a massive correction. | | Andrew Yang found this out the hard way and his lobbying | efforts in Washington to help get the 2nd stimulus checks | approved can be pretty much summed up as congress was | oblivious that the People needed further financial | assistance. That is how far detached they are from | reality, I think this recent stunt pulled in the capital | by blind ideologues served as a warning to how fast | things can devolve. | | The US experiment showed great promise and had amazing | prospects for a desirable model that Human Civilization | could aspire and achieve, but much like its predecessor | (Rome) it too decayed into oblivion due to the inherit | and predictable fact that power corrupts. Human's cannot | to be trusted with such power and to believe otherwise is | to fall back on to this absurd notion of a chiefton caste | system, that really on serves the upper tier of Society | and creates a poorly incentivized system that ensures by | the time you're even a possible candidate you're already | so marred by the corruption you're just as bad as you | what you wanted to change. | | I really do want things to get better, not just in the | US, but on the entire Earth as we have such a limited | window of opportunity to live up to our potential as | Species; but so long as we abide by these whimsical make- | believe popularity contests--with people we frankly | couldn't or wouldn't leave our pets under even the most | dire circumstance--who then in turn act as the arbiters | of everything aspect in Life that matters and use the | pubic purse for personal largess we will always succumb | to the same result. | | Software engineers at FAANG really should be working on a | protocol of governance that automates all the decision | making congress could and would do with it's priority on | rolling out a proper beta in the next 5 years, that could | actually be suitable challenge for them to redeem their | squandering talents and skills instead building this | horrible panopitcon. | | Remember, those rabid Q-anon/conspiracy guys are just as | much your fault as they are Trumps/Fox news when you look | at what most of you people do everyday. And it isn't | until they do something as stupid as they did this week | that it becomes obvious to those who did it. | | But, hey: it's just money, right? | tsimionescu wrote: | > Software engineers at FAANG really should be working on | a protocol of governance that automates all the decision | making congress could and would do | | Technocracy is much worse than even representative | democracy. We could barely even imagine the horrors that | would come from being subject to laws generated by rigid | computers. | [deleted] | [deleted] | willmw101 wrote: | It's almost as if becoming a superpower corrupts nations | yuriko wrote: | Judgment text: | https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html | jojobas wrote: | In a system where the government is essentially the majority of | the parliament, a law to reinstate the previous practice will be | passed pretty soon. | tialaramex wrote: | There's a difference between having the majority in Parliament | (which is generally necessary in order to govern) and being | able to muster that majority to vote on some specific matter of | interest to the general public. Johnson has a large majority | but they don't just answer to him, they answer first and | foremost to their constituents, and their constituencies are | not Gerrymandered to a tortuous degree so as to make only party | loyalty relevant. | nicky0 wrote: | Not necessarily. Whilst the Priti Patel strain of "law and | order first" MP is certainly there, a lot of Tory MPs are quite | hot on civil liberties and this is the kind of issue they tend | to rebel on. | jojobas wrote: | If they are so hot on the issue, why did they allow this to | happen before this ruling? | nicky0 wrote: | Because it was happening as a matter of common law. It | hasn't (yet) been up for debate as a specific question | before parliament. | PoachedSausage wrote: | The kind of civil liberties they like are the rather limited | kind, or only for the right kind of people (their voters). | During the debate on the November lockdown, the word | 'arbitrary' was used a lot, yet they are quiet on the | arbitrary nature of the classification of Cannabis, no civil | liberties for users of Cannabis (wrong kind of people). | tomatocracy wrote: | Actually there are a fair few Tories in favour of | legalisation of cannabis. Crispin Blunt and Peter Lilley | spring to mind as having been relatively forthright on this | but quite a few quietly hold these views. | Veen wrote: | Are you implying that cannabis users exclusively vote | Labour? I suppose that explains Jeremy Corbyn. | PoachedSausage wrote: | No, not a specific political difference, more of a | differnce of socio-economic/age/class/possibly even race. | As we saw at the last election Corbyn wasn't that popular | with some traditional Labour voters. | | Perhaps we will see some changes now that we are getting | stories of Hard Working Families (TM) having to spend | large sums of money to buy Cannabis based medications for | their children. | nicky0 wrote: | I was thinking people like Steve Baker (who as it happens | is also a member of the All-Party Parliamentary Group for | Drug Policy Reform - you might like him!) | goodcanadian wrote: | The High Court has ruled it is unconstitutional[0]. It cannot | simply be overruled by an act of parliament. | | [0]Edit: There seem to be objections to my use of the term | "unconstitutional." They have ruled it as against common law: | | _"The aversion to general warrants is one of the basic | principles on which the law of the United Kingdom is founded. | As such, it may not be overridden by statute unless the wording | of the statute makes clear that Parliament intended to do so."_ | | These sort of "basic principles" are often referred to as the | British constitution or constitutional principles, so I believe | my choice of term is correct even if there is no single written | document called the "constitution." As to the question of | whether parliament can overrule it, perhaps, technically, yes, | but I find it very difficult to come up with a scenario that | would successfully meet the objections in the ruling. | Veen wrote: | > It cannot simply be overruled by an act of parliament | | Yes it can. Parliament is sovereign: it can overrule anything | it likes with legislation. There is no higher authority than | parliament in the UK, not even the Supreme Court. | | Also, the High Court didn't rule it unconsitutional, it ruled | it contrary to common law. The UK is not the US. | | The executive (Cabinet etc) cannot simply ignore the ruling, | but they might be able to get legislation through Parliament | to explicitly allow general warrants. | | https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html | | > That principle means that the courts will, when | interpreting the provisions of a statute, presume that | Parliament did not intend to legislate in a manner which | overrides fundamental common law rights. The common law has | an aversion to general warrants that leave significant | matters of judgment and discretion to the person executing | the warrant rather than to the person legally or | constitutionally responsible for issuing it. | | > In view of the importance of the constitutional principle | that there can be no interference with property without clear | and specific legal authorisation, the words of an enactment | must be unambiguous before the court may interpret Parliament | as intending to override rights. There are no such | unambiguous words in section 5. The national security context | makes no difference as otherwise the courts would sanction | wide powers to override fundamental rights. | pmyteh wrote: | This is absolutely true in theory, but in practice | Parliament can find it... a little difficult to legislate | so as to overrule some exercises of judicial power. This | case touches on one of them: the Act establishing the | Investigatory Powers Tribunal contains an ouster clause | which is expressed as preventing any of its decisions being | appealed or questioned in another court (subject to | exceptions which don't apply here). And yet, here is the | High Court hearing a judicial review of one of the IPT's | decisions. | | The courts don't like these jurisdiction-stripping ouster | clauses, for good reasons - if someone can't be reviewed, | what is to stop then committing abuses under colour of law? | In _Anisminic_ (1969) the House of Lords ruled that an | ouster clause didn 't actually apply in a given case, and | that decision has been followed and expanded in various | cases to this day. Including in this case - today's | judgment was given after the Supreme Court ruled the IPT | ouster was ineffective for similar reasons. | | I'm not aware of any copper-bottomed legislative wording | that has been accepted to show that Parliament _really | does_ intend to oust jurisdiction, so in practice the | courts can and do rule 'they can't really have meant this' | even against the express intentions of Parliament. | simonh wrote: | Ansiminic (1969) is really interesting. | | Section 4(4) of the Foreign Compensation Act 1950 stated: | "The determination by the commission of any application | made to them under this Act shall not be called into | question in any court of law" | | However the House of Lords determined that the ouster | clause exempting the determination from legal review did | not apply, as there was no valid determination in the | first place. | | So essentially if the tribunal were to make a | determination consistent with the law then yes that | wouldn't be subject to judicial review, but if they make | an error of law then their determination is not valid and | therefore is subject to review. Take that, parliamentary | overreach! | tomatocracy wrote: | This has led to ever more elaborate ouster clauses eg | amending the wording to something like "determination or | purported determination". It's been an ongoing game of | legal sophistry. It's quite amusing really. | | This is a recent attempt (subsequently dropped I think as | the politics moved on): | https://ukhumanrightsblog.com/2020/10/15/the-uk-internal- | mar... | pmyteh wrote: | Yes! | | When I see US jurisprudence getting tied up in knots | about whether given rules 'are jurisdictional' or 'are | merely mandatory' I can really see the benefit of the | decision the HoL took in _Anisminic_. And it does | permanently prevent flagrant abuse of judicial power by | lower court judges. But the legal fiction of | parliamentary sovereignty does feel a little more | fictional when you read that case. | | (Of course, they were careful to make clear that | Parliament was, in fact, still sovereign, and given a | sufficiently expressed will, etc. etc. But in | practice...) | jsmith99 wrote: | Britain doesn't have a constitution. As the article alludes | to, when Acts of Parliament clash with semi-constitutional | items like international treaties, human rights laws, or | ancient traditions, the courts will attempt to construe the | law as Parliament not deliberately intending to override the | standard. However, if Parliament explicitly states their | intention, they can override anything. | | E.g. Lord Hoffmann in ex parte Simms [2000] 2 AC 115, at | p.131: "Parliamentary sovereignty means | that Parliament can, if it chooses, legislate contrary to | fundamental principles of human rights. ... The constraints | upon its exercise by Parliament are ultimately political, not | legal. But the principle of legality means that Parliament | must squarely confront what it is doing and accept the | political cost. Fundamental rights cannot be overridden by | general or ambiguous words. This is because there is too | great a risk that the full implications of their unqualified | meaning may have passed unnoticed in the democratic process. | In the absence of express language or necessary implication | to the contrary, the courts therefore presume that even the | most general words were intended to be subject to the basic | rights of the individual. In this way the courts of the | United Kingdom, though acknowledging the sovereignty of | Parliament, apply principles of constitutionality little | different from those which exist in countries where the power | of the legislature is expressly limited by a constitutional | document." | chrisseaton wrote: | > Britain doesn't have a constitution. | | https://en.wikipedia.org/wiki/Constitution_of_the_United_Ki | n... | | Also try reading 'The British Constitution: A Very Short | Introduction' by Martin Loughlin. | goodcanadian wrote: | _Britain doesn 't have a constitution._ | | Yes, it does. It is unwritten and fuzzy, but Britain | definitely has a constitution or at least "constitutional | principles" as mentioned in the quote you provided: | | _" . . . In this way the courts of the United Kingdom, | though acknowledging the sovereignty of Parliament, apply | principles of constitutionality little different from those | which exist in countries where the power of the legislature | is expressly limited by a constitutional document. "_ | | While it may technically be possible under certain | circumstances, I find it very hard to image how a piece of | legislation could be crafted that would successfully | override the arguments made here. | tomatocracy wrote: | Just to nitpick - the UK constitution is uncodified (ie | not in a single document called a constitution) and | _perhaps_ in part unwritten but most (perhaps all) of it | is written down in the various constitutional statutes | and judgements. | goodcanadian wrote: | Fair point. | beojan wrote: | > While it may technically be possible under certain | circumstances, I find it very hard to image how a piece | of legislation could be crafted that would successfully | override the arguments made here. | | Something along the lines of "The issuance of general | warrants is expressly permitted," perhaps? The principles | of constitutionality may be similar, but the amendment | process isn't, it simply requires an Act of Parliament. | [deleted] | PaulDavisThe1st wrote: | "Notwithstanding the objections to their issuance by | <court> on <date> and <court> on <data>, and stated | explicitly so as to satisfy the reasoning of said courts, | the issuance of general warrants is intended by | Parliament and shall henceforth be expressly permitted" | pmyteh wrote: | Parliament overruling the decision about warrant | specificity is quite straightforward. The wording in the | Act was somewhat ambiguous about how much specificity was | required, so the court ruled that it be interpreted | tightly in accordance with the principle of legality. | Parliament adding a simple 'The warrant may apply to | broad classes of activity and to persons not currently | known to the Secretary of State' would probably be enough | for that - in principle it just needs to be unambiguous | that that is what Parliament intends to do. | | The clause attempting to oust the jurisdiction of the | courts, on the other hand, would require something a lot | more vigorous. I don't know whether a clause like yours | would be sufficient, but if judges can find a way around | it they probably will. | goodcanadian wrote: | I doubt that a court would find that sufficient; it seems | overly broad and therefore ambiguous, but hey, I'm not a | lawyer. | jojobas wrote: | It's right there in your quote, if the parliament spells it | out in a law they can have it. | goodcanadian wrote: | They did spell it out in a law: the one that was just | overturned. I expect it will be very difficult to come up | with a wording that will stand up to the scrutiny of the | court. | jojobas wrote: | No law was overturned, a practice of the government was | found to be against the law. | Stierlitz wrote: | > .. the UK High Court has ruled that the security and | intelligence services can no longer rely on 'general warrants' .. | | obmanyvat' ;] | skinkestek wrote: | Looking up obmanyvat' it seems to mean "lie to" or deceive, but | I don't really get the context: | | is it a standing Russian joke or something? | kelchqvjpnfasjl wrote: | From Stanford v. Texas | | Vivid in the memory of the newly independent Americans were those | general warrants known as writs of assistance under which | officers of the Crown had so bedeviled the colonists. The hated | writs of assistance had given customs officials blanket authority | to search where they pleased for goods imported in violation of | the British tax laws. They were denounced by James Otis as "the | worst instrument of arbitrary power, the most destructive of | English liberty, and the fundamental principles of law, that ever | was found in an English law book," because they placed "the | liberty of every man in the hands of every petty officer." The | historic occasion of that denunciation, in 1761 at Boston, has | been characterized as "perhaps the most prominent event which | inaugurated the resistance of the colonies to the oppressions of | the mother country. 'Then and there,' said John Adams, 'then and | there was the first scene of the first act of opposition to the | arbitrary claims of Great Britain. Then and there the child | Independence was born.'" | simonh wrote: | Good one, that showed us Brits the right of it. | | #Cough# Civil Forfeiture #Cough# | tinus_hn wrote: | Not to mention the constitution free zone around the borders. | JulianMorrison wrote: | Which is 100 miles deep and includes many major cities. | AnthonyMouse wrote: | You're underselling that one, because they count the | coastline as a "border": | | https://www.bloomberg.com/news/articles/2018-05-14/mappin | g-w... | | > the border zone is home to 65.3 percent of the entire | U.S. population | bregma wrote: | Also, international airports. 100 miles around Denver, | Atlanta, or Dallas covers a lot of people. | [deleted] | guntars wrote: | Do they actually ever use it? I know it theoretically | means that CBP can search anyone's home in NYC without a | warrant, but if they never actually do it, they might get | shot down in the courts if they ever try. | lawtalkinghuman wrote: | If all else fails, you just outsource spying on your own | citizens to a friendly ally (the Five Eyes). | [deleted] | hedora wrote: | After Brexit, we out-idioted you. | | Now that the pendulum is swinging back, hopefully we'll take | this a challenge to out-competent you as well. | simonh wrote: | I like that take. | | Britain: Brexit. | | USA: Hold my beer! | [deleted] | jimbob45 wrote: | Hardly. Both Trump and Biden will be gone (probably dead) | after four more years and things will return to normal. All | doors will eventually reopen. | | Britain will never return to the normalcy of EU membership. | Things have changed permanently for that country in a way | that they might not have if they'd voted remain. Doors are | now closed for them. | vkou wrote: | Biden's presidency is not the abnormal thing. It'll be | yet another neo-liberal administration. | | The abnormal thing is the genie of reactionary populism | that the Republicans unleashed a decade ago, starting | with the Tea Party, and culminating with the Trump party. | Given that prominent republicans (Ted Cruz) are actively | trying to marshal those forces behind them[1], I don't | think that we'll be going back to normal anytime soon. | | [1] He's far more likely to win the 2024 nomination than | someone like Mitt Romney, who, for all his faults, is not | happy with Trumpism. | jimbob45 wrote: | I was trying to be inclusive. My point was that | everything 2020-related will be dead by 2024. | TheDong wrote: | Your comment was that "trump and biden will be gone, | things will return to normal". | | The parent is rightly pointing out that it doesn't matter | if those specific individuals in power are gone, that | doesn't mean the broader movements around them will | change. | | The problems of the world are rarely due to a single | person, and rarely are solved by a single person losing | power. Behind that single person is a system, and a new | person will take their place if the system isn't also | changed. | Razengan wrote: | As long as you think in terms of "us versus you" the | pendulum will keep swinging. | | That's how you started fighting among yourselves, after | all. | [deleted] ___________________________________________________________________ (page generated 2021-01-08 23:00 UTC)