Simon Asks about Intrusion Justification

[Ross Anderson]

Ross:

> If I'm falsely accused - or implicated
> by innocent mistake in an investigation - of terrorism, and the
> investigator concludes that I'm laundering my book royalties through
> a Jersey back account and not declaring them, then it is unjust if he
> tips off the Revenue.

Simon:

] That's your opinion.  Personally I don't agree.  You can't possibly saying
] that where an investigation of x reveals evidence of y (where x and y are
] criminal conduct investigated by separate agencies) that the investigator of
] x not pass that on?  You surely wouldn't say it if x were extortion and y
] were drug trafficking so why would you say it if x were terrorism and y were
] cheating the revenue?  

This is the view that the Home Office took in the Saunders case, and
as you may recall, the European Court did not share your view.

Now, if a DTI inspector users his powers to compel a company director
to answer questions on pain of imprisonment, there are extremely tight
restrictions on what the answers can be used for, thanks to the Court.

The general point is that if extraordinary power X is useable only for
investigating crimes of seriousness A, and its use provides no
evidence of a type A crime but merely of a much less serious type B
crime, then that evidence should be unusable - not just as evidence,
but even as intelligence.

The clear and present danger is that a judge or minister gives some
agency a warrant to collect lots of traffic data for anti-terrorist
purposes, and the agency then uses it to build an empire by being the
best source for tip-offs in the whole of the criminal justice system.

The implementation is interesting. How am I to get to know that a
restricted power (e.g., phone tapping, or traffic data analysis) was
used against me?  The only satisfactory answer I can see is post-facto
notification.  This might be mandatory, in that everyone whose traffic
data were seized would be told; it might also be acceptable if I could
do a subject access request and find out from the agencies' logs who
had looked at my traffic data recently. Then if I suddenly get raided
by the Revenue, and handed a large bill, I could observe that someone
had looked at who I'd been exchanging email with and use that as a
`poisoned fruit' defence.

If Home Office doctrine can't accommodate effective restrictions on
the use of special powers, then the only logical response from the
liberties community is to oppose such powers completely. I have always
been sceptical of the operation value of special powers, however much
they may appeal to empire-building mandarins and `do-something' pols.
After all, the police in Northern Ireland have had everything they
asked for over the last thirty years - they effectively ran the phone
system and much else besides - and they didn't beat the IRA, did they?

Ross