WHOEVER came up with the name for the Regulation of Investigatory Powers Act should really have given some thought to the acronym. As if the so-called snooper’s charter wasn’t going to be controversial enough, “Ripa” also brings to mind some of the most infamous murderers in UK history.
No wonder Jed Mercurio, when penning his latest BBC drama Bodyguard, decided to make his Home Secretary a cheerleader for beefing up the legislation. A politician who seeks to persecute minorities or deport at-risk families isn’t nearly complex enough. Better to leave room for ambiguity, so the viewers can’t quite be sure if Keeley Hawes’s character is a terrorism-tackling goodie or a power-hungry baddie.
READ MORE: Scottish toddler’s mother threatened with deportation in 7 days
The references to Ripa might have felt a little retro to those watching the show’s opening double bill – as the legislation hasn’t been amended in more than eight years – but the real-life conviction of a murder suspect days later brought things bang up to date.
Stephen Nicholson, who was arrested soon after the July murder of Southampton schoolgirl Lucy McHugh, was jailed last Friday for refusing to provide police officers with his Facebook password. He claimed his page contained references to cannabis that might prove incriminating, and for failure to co-operate he was handed a 14-month prison sentence.
This probably isn’t the kind of case the civil liberties campaigners had in mind when they argued against the introduction of sweeping surveillance new powers. The cases that have attracted press coverage and criticism in recent years involve councils snooping on families to check they live in particular school catchment areas, or using Ripa provisions to catch those responsible for dog-fouling and fly-tipping. These offences are a world away from the terrorism and child sexual abuse threats that were used to push through the law in 2010.
It will surely come as a shock to many people that while the authorities can tap phones, open mail, bug houses and put suspects (and their dogs) under surveillance, they can’t access a digital source of evidence that prior to the crime may have been viewable by hundreds of people, or even been largely public. Only in emergencies, where there is an “imminent threat to life” – will US-based Facebook swiftly hand over the keys to a user’s account.
It’s not entirely clear why the police need to access Nicholson’s account to view messages exchanged between him and Lucy – which would presumably also be viewable by accessing her own account – or whether they have been able to override security on his mobile phone or email accounts (which would surely permit them to reset the Facebook password and access that account). Logging into someone else’s Facebook account isn’t even a crime, but to gain access via the back door the police must join the back of a very long queue and use the Mutual Legal Assistance Treaty scheme to apply to the US Departure of Justice, a process that can take months or even years.
Facebook’s own figures show that in the last six months of 2017 it received nearly 7500 UK Government requests for data, including nearly 1400 emergency requests. The rate at which the company “complied with all or some of the government’s request” was around 90% for both types, but it does not elaborate further on what data was disclosed, or reveal how often it has handed over full access to accounts.
Clearly, there is a need to balance the privacy rights of users with the needs of foreign police to investigate crime. Cressida Dick, head of the Metropolitan Police, says login details should be available “within minutes”, but it’s hard to imagine how this would be possible without abandoning safeguards altogether.
Consider, for example, a request from an oppressive regime for access to the account of a terror suspect who claims to be a freedom fighter. Or sex offence charges brought against an anti-government agitator. How can Facebook or any other company be sure such charges haven’t been concocted in a bid to gain access to correspondence about an entirely different matter?
While Stephen Nicholson has made clear he is refusing to hand over his password, others facing similar charges under Ripa have blamed memory failure. In 2010 a 19-year-old man was sent to a young offender institution for failing to disclose an encryption key to police officers investigating child sexual exploitation.
As this password was 40-50 characters long, the prosecution argued that the accused must have written it down, and the jury took only 15 minutes to reach a guilty verdict. He was never charged with any other offence but now has a conviction to his name, which will forever be linked to horrific crimes.
As long as police face significant roadblocks when it comes to accessing Facebook accounts or cracking encryption, it seems Ripa will be used to put pressure on those accused of serious crimes, who of course must be presumed innocent until proven guilty of those.
A short spell in prison would be a high price to pay for a genuine instance of forgetfulness by someone with nothing to hide ... but it would be a very small price for getting away with murder.
Why are you making commenting on The National only available to subscribers?
We know there are thousands of National readers who want to debate, argue and go back and forth in the comments section of our stories. We’ve got the most informed readers in Scotland, asking each other the big questions about the future of our country.
Unfortunately, though, these important debates are being spoiled by a vocal minority of trolls who aren’t really interested in the issues, try to derail the conversations, register under fake names, and post vile abuse.
So that’s why we’ve decided to make the ability to comment only available to our paying subscribers. That way, all the trolls who post abuse on our website will have to pay if they want to join the debate – and risk a permanent ban from the account that they subscribe with.
The conversation will go back to what it should be about – people who care passionately about the issues, but disagree constructively on what we should do about them. Let’s get that debate started!
Callum Baird, Editor of The National
Comments: Our rules
We want our comments to be a lively and valuable part of our community - a place where readers can debate and engage with the most important local issues. The ability to comment on our stories is a privilege, not a right, however, and that privilege may be withdrawn if it is abused or misused.
Please report any comments that break our rules.
Read the rules here