The Government has now published the Privy Council Review of intercept as evidence: report to the Prime Minister and the Home Secretary (.pdf 64 pages - censored) produced under Rt. Hon, Sir John Chilcot GCB.
This review makes the recommendation. that Intercept Evidence should, vaguely, at some undermined time in the future, be permitted in Courts in England and Wales (but not in Scotland or in Northern Ireland), for terrorism and serious crime cases , but not for Civil cases,. It is unclear if the recommendation for "terrorism" cases also include other national security cases such as espionage.
The tone of this Privy Council Review, gives Prime Minister Gordon Brown the opportunity to Pretend To Have Done Something and to spin some soundbites about "accepting the use of intercept evidence" in some, but not all Courts in the UK, and not for all the cases where it could be used.
There is no guarantee whatsoever, that the ban on Intercept Evidence will actually be rescinded in the foreseeable future.
Some impressions on reading the Review:
11. This is the seventh report to Ministers on the issue of intercept as evidence in the last thirteen years, but it is the first to have been produced by people who are not currently within government.
As will be familiar to readers of the token Intelligence and Security Committee (ISC) reports
For reasons of national security and to preserve confidences, the public version of our Report unavoidably omits some of the most telling details of the case against evidential use, which are nonetheless very important in reaching a judgement Such redactions are indicated by the symbol ***. ***
This is hardly surprising given the authors of this Review:
- Rt Hon Sir John Chilcot GCB - former Northern
Ireland Office Permanent under-Secretary and member of the Butler Review into the (lack of) Intelligence on Weapons of Mass Destruction in Iraq.
- Rt Hon Lord Archer of Sandwell - Labour - former member of the ISC
- Rt Hon Alan Beith MP - Liberal Democrat - current member of the ISC
- Rt Hon Lord Hurd of Westwell - Conservative - former Home Secretary and former Foreign Secretary
The Review mentions
Voice Identification Techniques
Techniques that aim to identify a speaker (or confirm such an identification) based on recordings of the speaker's voice.
However it does not provide any clues as to how this sort of Evidence could be used sensibly in a Court, given the ease with which Digital recordings from mobile phones, or from Voice over IP (which is what most of UK calls will be in a few years time, even over the core British Telecom network) can be faked or edited without detection .
The Chilcot Review states the very obvious:
Those with experience in interception have emphasised that the vast majority of communications between serious criminals or terrorists are scrappy, highly allusive, and often deliberately disguised as legitimate conversations. Regardless of language, they make extensive use of dialect and slang. Clear, understandable exchanges that plainly inculpate those involved are very much the exception
Remember that in the case of Farid Hilali which relies entirely on Mobile Phone Intercept and Voice Identification Evidence, The Spanish authorities allege that he was linked with the head of the Al Quaeda cell Barakat Yarkas cell in Spain, entirely on the basis of a "voice match" to an intercepted mobile phone calls, supposedly made somewhere in the New Cross or Pecham areas of South East London, to between someone calling themselves "Shakur" and Yarakat, whose phone was, presumably the one being tapped by the Spanish authorities.
The carefully selected "suspicious" fragments of of conversation used vague phrases like "had entered into the field of aviation" and "cut the throat of the eagle" - hardly a smoking gun confession of anything illegal.
The the Spanish Supreme Court threw out all the mobile phone evidence linking Yarkas in this large trial of Al Quaeda cell members, as being illegally obtained and /or poorly translated from Arabic, a language which is usually full of words and phrases with multiple possible interpretations anyway,.
How can defence lawyers prove that the alleged Digital Intercept Evidence being presented against their client might have been faked or selectively edited ?
How can the prosecution show to a Court that the Digital Intercept Evidence they are relying is actually reliable ?
Given the lack of anyone with any technical expertise on the Review panel, it is no surprise that they did not bother to consider whether Digital Timestamps based on cryptographic digital signatures, could be an effective way of presenting in Court, such Digital Evidence in a manner which would show that it had not been tampered with.
Did none of the six previous reports to Ministers on Intercept Evidence bother to investigate the pros and cons of Digital Timestamps and /or Digital Signatures either ? Remember that there is already existing legislation, which is widely ignored by this Labour Government which passed it i.e. the Electronic Communications Act 2000 and the Electronic Signatures Regulations 2002
Some of the arguments put forth by the intelligence agencies, presumably in this case, GCHQ, are utter nonsense, especially the stuff about the cost of keeping raw intercept data, and changing the standard of transcription and translation to cross every "t", and to dot every "i", to bring such transcripts and translations up tp "evidential" standards.
Are they really claiming that they do not have enough digital storage capacity to preserve the full amount of intercept material which they gather on an individual, when an investigation moves on from intelligence towards criminal charges before a Court ?
Do they not get a massive bulk discount on hard disk and tape storage media costs ?
It may be highly relevant in a Court case, if there are months and years of intercept evidence, during which time there is no criminal activity identifiable in the intercept material, this may be evidence of unjustifiable Police or intelligence agency harassment or faulty intelligence, or mistaken identity. The intercepting agencies should not be allowed to destroy it simply on the grounds of digital media storage costs.
If an intercept transcription and/or translation or is relevant to a criminal case, then there could be a separate team of transcribers and translators employed by. or charged out to, the legal court system, rather than paid for from GCHQ's budget.
Even if this process were ever to reveal that, for example, the automatic speech to text pre-processing or the GCHQ Dictionary keyword watchlist systems, or any artificial intelligence machine translations (higher capacity versions of the automatic text translation systems available commercially or via the internet e.g. BabelFish) applied to the raw intercept data streams, or even the human transcribers or translators had missed or misheard or mistranslated a particular word or phrase, that does not compromise national security techniques at all.
Any future terrorist, spy or criminal would be stupid to believe that such algorithms or dictionaries or trained humans had not been updated by the time such transcripts or translations are used in Court.
Some of the arguments put forward on behalf of the interception agencies are an insult to the intelligence of the general public, and to skills of professional barristers and lawyers.
120. There are a number of practical difficulties with using Internet Protocol material as evidence.
- Putting multiple inputs together will demand a degree of sophisticated analysis by the intercepting agency, which may not be easy to explain to a jury. This will of course be over and above interpreting the targets' use of veiled and allusive speech, obscure dialects etc. If any one of those inputs is missing ***,
So what ? That should not be a problem for a competent barrister or Queen's Council - they do this all the time in complicated cases.
- it will be easy for the defence to argue that the missing content would provide an innocent explanation of the apparently incriminating contents of the others.
Something which could actually be true sometimes - a judge and jury are quite capable of weighing up that sort of claim.
- If it becomes known, from one criminal case, that a particular service can be exploited by the intercepting agencies, other criminals will easily be able to move to different services (from the wide choice available through the Internet) which they believe are more secure. This will quickly result in the loss of useful intercept ***.
They are talking about Voice over IP services here, but this is utter nonsense - "useful intercept" has not dried up from all the other "old fashioned" telephone communication methods, has it ?
The serious criminals, terrorists and spies will still be "allusive" and will not self incriminate themselves when using VoIP either. The amateurs idiot will continue to do so anyway, regardless.
- In the same way, if it becomes apparent that a particular service cannot be exploited, it will be easy for criminals and terrorists to make deliberate use of it. They will not need to know why that service is unexploitable.
It is a fantasy to suppose that serious spies, terrorists or criminals will not know, or be will not be professionally advised, about exactly the real practical strengths and weaknesses of any particular service, and base their own "life or death" risk assessments accordingly.
The senior masterminds will willingly sacrifice junior or associate members of their gangs, in order to test to what extent such services or systems are vulnerable to intelligence or law enforcement agencies, throughout the world, not just in the United Kingdom.
One small tidbit of information which seems to have escaped the self-censorship is:
LAW ENFORCEMENT USE
In addition, the Metropolitan Police (for public order
purposes) and HM Revenue & Customs (to counter revenue crime) have independent facilities, however the bulk of Metropolitan Police interception is provided by SOCA.
How is the interception of telephone calls and emails etc. by an independent facility of the Metropolitan Police Service, justified as proportionate under the Regulation of Investigatory Powers Act, for public order purposes ?
Are they snooping on, say, Brian Haw and his supporters protesting peacefully in and around Parliament Square and Whitehall, or perhaps on their Police Federation colleagues, even though they have never been accused of crimes which meet the RIPA test of Serious Crime i.e. offences which would be expected to attract a prison sentence of 3 years or more, for a first time offender, if convicted ?
Are these "independent facilities" being properly audited by the RIPA Interception of Communications Commissioner Rt. Hon. Sir Paul Kennedy ? Does he even know of their existence ?
It would not compromise "national security" for details of such Metropolitan Police "public order" interceptions to be detailed in the Annual Report of the Interception of Communications Commissioner,
it is impossible for the public to trust that these "independent facilities" are being properly scrutinised, from the vague, heavily censored and deliberately out of date, Annual Reports of the RIPA Commissioners.