From a mobile phone a person today can effectively run their life – it contains access to emails, banking, billing, relevant medical history, emergency contacts, shopping history, shopping lists, to do lists, photographs, contact information containing addresses, birthdays, telephone numbers. It is possible that the phone will contain sensitive business data, work emails, or access to work emails, client and customer information. In the case of lawyers and their clients it may contain legal advice and for journalists, journalistic material and information about sources. It’s information that you definitely would not want to get into the wrong hands, but likewise would you want to hand it over to the State?
There has been much in the media recently about the proposals in the United States to require individuals entering the country to provide passwords to their electronic devices, social media accounts and emails. A refusal to provide the requested information could result in the Customs and Border Patrol officer refusing to allow an individual entry and returning them to their country of origin. Law firms have advised their lawyers not to travel with devices containing material subject to legal professional privilege and other companies have issued guidance on how their staff should travel to the United States.
Little has however been said about the law here. In 2013, there was wide media reporting after the detention of David Miranda, the partner of Glenn Greenwald (a journalist). He was stopped under Schedule 7 of the Terrorism Act 2000 when carrying a laptop containing encrypted files in the wake of the Edward Snowden disclosures. At the time there was widespread concern about the detention and its impact on journalistic material. The powers had been widely used in the preceding years with little monitoring and had been disproportionately directed at Muslims. The powers appear to have been used less frequently in recent years, but it remains that little is said about them and their use.
That is until this week when the issue has again arisen following the decision to charge Muhammad Rabbani, the director of Cage, for refusing to provide the passwords to his laptop at Heathrow airport in 2016. He now finds himself facing prosecution under paragraph 18 of Schedule 7 of the Terrorism Act 2000 for wilfully obstructing or seeking to frustrate a search examination. A person who is found guilty of an offence under Schedule 7 is liable to a term of imprisonment not exceeding 3 months or a fine not exceeding £2,500. The charge is summary only and so can only be heard in the Magistrates’ Court. The power to stop, question or detain an individual applies for the purpose of determining whether a person “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (section 40(1)(b) of the Act) or to determine “whether his presence in the area is connected with his entering or leaving Northern Ireland” (paragraph 3, Schedule 7). However, the examining officer may exercise their powers under the Schedule whether or not they have any ground for suspecting that the person may indeed have any connection to acts of terrorism and the person stopped “must” comply.
Rabbani was re-entering the UK following a trip to the Gulf States in November 2016. Cage is investigating allegations of torture involving the United States and Rabbani held files relating to the case on his laptop.
There are significant data protection issues in relation to such wide ranging powers and their use at the Border. As technology becomes ever more advanced the vast amounts of personal data about ourselves and others that we carry on our persons increases exponentially. Businesses are, or should be, concerned about how data is retained on their employees’ business devices and will be mindful of the need to ensure the security of their data. Individuals likewise should be increasingly concerned by and prepared for the use of such powers by Border Officials. We await with interest the outcome of Mr Rabbani’s next appearance at the Magistrates’ Court on 20 June.