Developments in Counter-Terrorist Measures and Uses of Technology

Helen Fenwick

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781138107700
• eBook ISBN: 9781135703837
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

This book considers some of the most notable aspects of the legal response to the "war on terror" post- 9/11 and the use of technology to support them. It examines the shift from a criminal justice response to the creation of a parallel preventive system running in tandem with it. This system has tended to veer away from the commission of criminal offences or adherence to ordinary criminal justice safeguards. Such a preventive strategy relies on targeting terrorist suspects – those who it is thought may in future commit terrorist acts – and curbing their actions with the aim of preventing terrorist activity before it occurs.

The book further considers the role that surveillance plays in the counter-terrorist efforts of state or non-state actors. It also evaluates the counter-productive effects that many of these measures have had.

This book was originally published as a special issue of International Review of Law Computers & Technology.

INTRODUCTION

Counter-terror strategies, human rights and the roles of technology

Introduction

9/11 re-shaped the counter-terrorist response in the UK. After 9/11, the ‘war on terror’ was viewed, as ‘not a matter of choice but a strategic imperative’.¹ Thus, the response has been heavily influenced post-2001 by the government’s view of the threat posed by extremist Islamic groups and the fear of suicide-bombing. The UK Government’s response to this threat has military aspects — the wars in Iraq and Afghanistan — but within the UK itself it is police-based: it has involved a very significant ratcheting up of the state’s coercive powers in terms of surveillance, data-sharing, detention, asset-freezing and other invasions of personal liberty.

Broadly speaking, four main counter-terrorist strategies can be identified: increased use of forms of surveillance, including use of CCTV and tracking of personal data; an increase in the grant of very broad powers to the police; the creation of a range of broad terrorism offences, including in particular early-intervention offences, targeting the preliminary and preparatory stages of suicide bomb attacks; use of preventive measures to curb the activities of individuals outside the criminal justice system. All these trends were apparent post 9/11. The first three were already apparent post-2000, but the use of the measures in question intensified post 9/11. The last trend stemmed directly from 9/11.

But a shift of emphasis is underway in 2011. When the Coalition government came to power in 2010 it conducted a review (Review of Counter-Terror Law and Security;² hereinafter ‘The Review’) in January 2011 of the more controversial and human-rights infringing aspects of counter-terror laws and practices. It began to put certain reforms in place in 2011. How far-reaching those reforms are likely to be in practice and their compatibility with the European Convention on Human Rights is considered in this Special Issue edited by Helen Fenwick.

Expansion of the range of terrorism offences

The previous Labour government introduced a new counter-terrorist scheme with the introduction of the Terrorism Act 2000 (TA). A change in policy was encapsulated in the Terrorism Act 2000 in that temporary, graduated measures were replaced with permanent, broadly applied ones, but the 2000 Act relied on a traditional reactive approach, that of seeking to charge terrorist suspects with offences and bring them to trial. This scheme offered quite a strong contrast to the previous one of the 1970s, 1980s and 1990s. The previous UK counter-terrorist scheme — under the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1996, as amended — revealed some acceptance of the principle that emergency measures should be adopted only in the face of immediate and severe need. The TA was introduced at a time when terrorist attacks were not of the scale that they had been previously, although the government clearly had in mind an impending threat from extremist Islamic groups. The TA applied all the special terrorism offences to a far wider range of groups than had previously been the case; it was therefore a much less graduated measure than the previous ones.

The anti-terrorism powers and offences discussed in this issue all use the basic definition of terrorism set out in section 1(1) of the Terrorism Act 2000. This provides that ‘terrorism’ means the use or threat, ‘for the purpose of advancing a political, religious or ideological cause’, of action ‘designed to influence a government or to intimidate the public or a section of the public’, which involves serious violence against any person or serious damage to property, endangers the life of any person, or ‘creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously to disrupt an electronic system’. This extraordinarily wide definition covers such action occurring anywhere in the world (under s 1(4)). Moreover, because it covers damage to property, it could clearly encompass direct action by protest groups, such as causing criminal damage to GM crops or airforce bases used for military attacks on other countries.

The Terrorism Act 2000 remains the central measure within this scheme, but the later additions to the counter-terrorist scheme in the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Terrorism Act 2006, the Counter-Terrorism Act 2008, the Terrorist Asset-Freezing etc Act 2010 have tended to increase the tension between the counter-terrorist measures and human rights. The 2005 Act is considered below in relation to the preventive measures it creates — curbs on the liberty of suspects (control orders) not dependent on a criminal trial. But it also adds to the range of available terrorist offences since a breach of a control order is a criminal offence. The Terrorism Act 2006 saw no further introduction of preventive measures, but a return to the reactive TA model, albeit with a further racheting up of state powers. It added to the very broad panoply of offences already in existence under the 2000 Act and reaffirmed the use of a more draconian pre-trial regime for terrorist suspects. It introduced new offences of activities preparatory to terrorist acts, and a new offence of indirect encouragement of acts of terrorism, including glorification of terrorism. The introduction of the new very broad preparatory offence and the new offence of glorification, although open to criticism in a number of respects, could be seen as expressing some acceptance of the human rights problems that arise when counter-terrorist sanctions such as semi-house arrest are applied without trial and with minimal judicial supervision under control orders, as discussed below.

Varying roles of technology

This special issue examines a range of counter-terror measures, mainly of an investigative or preventive type. Against that backdrop, a recurring theme concerns uses of technology in relation to such measures. As Quirine A.M. Eijkman and Daan Weggemans put it in this special issue: ‘modern technology has … become a central component of counterterrorism strategies. This increased reliance on technology was not only a consequence of its availability and reduced costs but was also caused by strong public pressure on authorities to deal with the threat of terrorism’. Technology clearly has an important role to play in preventing and detecting terrorist activities, by, for example, the use of information and communications technology to create the effective freezing of assets of terrorist groups. Visual surveillance plays a part in terrorist investigations, as does internet surveillance and the interception of communications of terrorist suspects. ‘Data mining’ is a tool that is increasingly deployed by Western security services. Data-mining means collating and processing information from a range of anodyne or passive surveillance sources such as CCTV (which can conduct facial recognition) and the internet (where every person constantly leaves an ‘internet trail’) and using it to attempt to target suspect individuals, e.g. to prevent them from travelling abroad. (It may be noted that Brievik, responsible for the recent terrorist massacre in Norway, had an internet presence, which possibly could have provided information alerting security services to the impending attacks.)

But at the same time, forms of surveillance, such as via CCTV cameras or body-image airport scanners, may be viewed as intrusive and possibly as disproportionate to the benefits offered. To carry out effective data mining and extract useful information for counterterrorism and national security purposes, security services need to gather a large range of all kinds of information about individuals. However, the collection and use of this information could be a threat to the individuals’ privacy and civil liberties.³ On these issues in this edition see: Quirine A.M. Eijkman and Daan Weggemans’ paper ‘Visual surveillance and the prevention of terrorism: What about the checks and balances?’, and Daniel Fenwick’s paper ‘Terrorism, CCTV and the Freedom Bill 2011: Achieving compatibility with Article 8 ECHR?’.

Technology may also be exploited by terrorist groups — an obvious example would be the use of the internet to spread radicalizing hate speech and incitement to commit terrorist acts. Clearly, the state has a greater ability to employ technology in the form of weaponry than have terrorist groups. One might also expect that in terms of employment of information technology the state would be a step ahead of terrorist groups. However, one interesting, apparently impending, phenomenon is the use by extremist groups of cyberterrorism: the presence of the internet offers them a forum within which they may use more sophisticated techniques than those developed by the security services to counter them. The possibility of cyber attacks on critical infrastructure creates new and complex national security problems. Cyber-terrorism is ‘the use of computer network tools to shut down critical national infrastructures (such as energy, transportation, government operations) or to coerce or intimidate a government or civilian population.’ Cyber terrorism operates on the premise ‘that as nations and critical infrastructure became more dependent on computer networks for their operation, new vulnerabilities are created’.⁴

Clearly it might appear then that ever more sophisticated state surveillance techniques need to be developed, while at the same time suspects’ use of the internet and other means of electronic communication should, where possible, be prohibited or curbed. For that reason, bans on the use of electronic methods of communication by terrorist suspects were a common feature of control orders (see Helen Fenwick’s paper ‘Preventive anti-terrorist strategies in the UK and ECHR issues: Control orders, TPIMs and the role of technology’). However, the TPIMs strategy recognizes that such bans may be counter-productive since they block a number of possibilities for the electronic surveillance of suspects. Obviously, if suspects are banned from the internet or phones opportunities for ‘data mining’, which could provide material allowing for a prosecution — especially of certain of the current very broad terrorism offences — are likely to be limited.

Preventive/pre-emptive counter-terrorist measures

One strand of the counter-terrorist measures adopted post 9/11 and post 7/7 has been of a preventive as opposed to a reactive nature. In other words, rather than charging persons with terrorist crimes and bringing them to trial, attention turned after 2001 to targeting possible terrorist suspects — persons who may in future commit terrorist acts or are suspected of involvement in terrorist activity — and controlling their activities in order to prevent or disrupt terrorist activity. This change in UK anti-terrorist policy in recent years has been described as being ‘the shift to intelligence-based and proactive methods [with] the primary aim of preventing terrorist attacks, rather than responding to events and attempting to solve crimes after they occur.’⁵ But such preventive measures are clearly more risky and pernicious in human rights terms since they are not subject to the normal due process safeguards created by the criminal justice system, and therefore miscarriages ofjustice are more likely to occur. Such measures have included detention without trial, control orders, asset-freezing and now, in 2011, Terrorism, Prevention and Investigation Measures (TPIMs).

The TA, despite its immense and unprecedented scope, was viewed in 2001 by the government as inadequate to address the terrorist threat post 9/11. Following the attacks on Washington and New York of 9/11, the government introduced the Anti-Terrorism, Crime and Security Act 2001 (ACTSA). The ACTSA, controversially, ushered in the preventive measure of detention without trial in Part 4 aimed at suspected non-British international terrorists, as opposed to seeking to charge such persons with criminal offences under the TA provisions, or with ordinary criminal offences. This required a derogation from the right to liberty guaranteed by Article 5 ECHR.⁶ Following widespread domestic and international criticism, and after the legislative provisions were declared incompatible with Articles 5 and 14 of the European Convention on Human Rights by the House of Lords in A and Others v. Secretary of State for the Home Dept,⁷ the government accepted that it could no longer sustain the scheme.

It withdrew its derogation from Article 5, and introduced ‘Control Orders’ under the Prevention of Terrorism Act 2005 (PTA).⁸ In that Act, Parliament repealed the key provisions of Part 4. The new PTA scheme also relied on the use of preventive measures to curb liberty imposed outside the criminal justice system. These apply to British and non-British suspects alike, but again do not require proof of criminal activity. The standard of proof required is low: it relies on asking only whether there are reasonable grounds for suspecting that an individual is or has been involved in ‘terrorism-related activity’; additionally the Secretary of State must consider each obligation imposed to be necessary for the purpose of protecting the public from a risk of terrorism. Any obligations that the Secretary of State considers necessary for the purpose of preventing or restricting involvement in terrorism activity may be imposed,⁹ except obligations that would breach Article 5 (or Article 3, the anti-torture guarantee).¹⁰

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Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• 1. Introduction: Counter-terror strategies, human rights and the roles of technology
• 2. Terrorist asset-freezing – Continuing flaws in the current scheme
• 3. Preventive anti-terrorist strategies in the UK and ECHR: Control orders, TPIMs and the role of technology
• 4. Visual surveillance and the prevention of terrorism: What about the checks and balances?
• 5. The impact of counter-terrorism measures on Muslim communities
• 6. Terrorism, CCTV and the Freedom Bill 2011: Achieving compatibility with Article 8 ECHR?
• 7. Camera surveillance within the UK: Enhancing public safety or a social threat?
• Index