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Victory at the High Court against the government’s use of 'general warrants’

298 points by mpweiher 6y ago

GordonS 6y ago
Is anyone aware of an authoritative source detailing specific instances of where "general warrants" have been misused, and how? I know in general about what came out after Snowden of course, I'm just interested to learn more about specifics relating to these warrants.
- mmhsieh 6y ago
  This goes back farther than you are likely asking for, but general warrants were called out in the U.S. bill of rights and were alluded to in the declaration of independence because the British crown had been using them to investigate smugglers and tax dodgers, especially in the northeastern American colonies.
- boomboomsubban 6y ago
  Imagine a murder happened. A judge issues you a general warrant to search for anything suspected as evidence regarding the case. You now can now search anyone anywhere.
  - HeWhoLurksLate 6y ago
    And, IIRC, the second part that makes it so worrisome is that the warrant holder can then go and use whatever evidence they find in other- or to start new- cases.
- LatteLazy 6y ago
  The bulk collection by intelligence agencies of phone and Internet data is the biggest example of a general warrant. There are more specific examples like when police demand the ID of everyone who's cell phone providers place them at a protest (aka GeoFences) or the details of everyone who searched for certain terms.
- hedora 6y ago
  This is a start: https://www.eff.org/issues/privacy https://www.eff.org/issues/privacy
unanswered 6y ago
So it appears that as of now, general warrants are disallowed in the UK and (in practice) permitted in the US. America's founding fathers are spinning in their graves.
- DamnYuppie 6y ago
  The foundering fathers did their part. We as the inheritors have failed miserably in holding onto the freedoms that were gifted to us.
  - willcipriano 6y ago
    Thomas Jefferson said it best: "The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right."
    - PoachedSausage 6y ago
      That might have been true in Jefferson's day, lifespans were shorter. Now most western democracies are effectively gerontocracies, the young are bound to the wishes of the old. See Brexit.
      - function_seven 6y ago
        Lifespans weren't that much shorter in his day (provided you made it to 5 years old). He's not describing something that is "true" or not, but rather what ought to be. I think it's just as relevant today as when he wrote that.
kelchqvjpnfasjl 6y ago
From Stanford v. Texas Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer." The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"
- deleted 6y ago
  [deleted]
- simonh 6y ago
  Good one, that showed us Brits the right of it. #Cough# Civil Forfeiture #Cough#
  - tinus_hn 6y ago
    Not to mention the constitution free zone around the borders.
    - JulianMorrison 6y ago
      Which is 100 miles deep and includes many major cities.
      - AnthonyMouse 6y ago
        You're underselling that one, because they count the coastline as a "border": https://www.bloomberg.com/news/articles/2018-05-14/mapping-who-lives-in-border-patrol-s-100-mile-zone https://www.bloomberg.com/news/articles/2018-05-14/mapping-w... > the border zone is home to 65.3 percent of the entire U.S. population
yuriko 6y ago
Judgment text: https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html
jojobas 6y ago
In a system where the government is essentially the majority of the parliament, a law to reinstate the previous practice will be passed pretty soon.
- nicky0 6y ago
  Not necessarily. Whilst the Priti Patel strain of "law and order first" MP is certainly there, a lot of Tory MPs are quite hot on civil liberties and this is the kind of issue they tend to rebel on.
  - PoachedSausage 6y ago
    The kind of civil liberties they like are the rather limited kind, or only for the right kind of people (their voters). During the debate on the November lockdown, the word 'arbitrary' was used a lot, yet they are quiet on the arbitrary nature of the classification of Cannabis, no civil liberties for users of Cannabis (wrong kind of people).
    - Veen 6y ago
      Are you implying that cannabis users exclusively vote Labour? I suppose that explains Jeremy Corbyn.
      - PoachedSausage 6y ago
        No, not a specific political difference, more of a differnce of socio-economic/age/class/possibly even race. As we saw at the last election Corbyn wasn't that popular with some traditional Labour voters. Perhaps we will see some changes now that we are getting stories of Hard Working Families (TM) having to spend large sums of money to buy Cannabis based medications for their children.
    - tomatocracy 6y ago
      Actually there are a fair few Tories in favour of legalisation of cannabis. Crispin Blunt and Peter Lilley spring to mind as having been relatively forthright on this but quite a few quietly hold these views.
mtgx 6y ago
This is kind of hilarious, considering one of the top (public) reasons why David Cameron and Theresa May have been supporting Brexit is so that UK no longer has to abide by the EU Charter of Fundamental Rights, because the top EU court has slapped down the UK's mass surveillance regime a couple of times.
- deleted 6y ago
  [deleted]
- SEMW 6y ago
  That was the European Court of Human Rights. It's not a 'top EU court', or an EU court of any sort. It's a body of the Council of Europe, which is an entirely different institution (with a much larger international membership than the EU). It enforces the European Convention on Human Rights. (the EU does requires members to be CoE members, and so there were some people suggesting that after leaving the EU the UK might also leave the CoE - possibly including theresa may, I haven't checked - but that doesn't currently seem likely to happen) The EU Charter of Fundamental Rights is definitely a thing - basically a copy of the ECHR into EU law - but it's only applicable (1) to actions of EU institutions, (2) as a restriction on EU legistation, and (3) as an obligation on member states _when interpreting / implementing EU law_. It has no relevance to UK law other than that. (And what little relevance it would have had to the UK was further weakened since they had a partial opt-out to it that tried to get rid of the last of those for the UK!). The cases about UK surveillance legislation (eg [0]) were all ECtHR, not CJEU. [0] https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-6187848-8026299&filename=Big%20Brother%20Watch%20and%20Others%20v.%20the%20United%20Kingdom%20%20-%20complaints%20about%20surveillance%20regimes.pdf https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&...
arethuza 6y ago
Nitpick: I believe it is the High Court of England and Wales, not the High Court of the UK. The High Court in Scotland is the top level criminal court with the equivalent to the High Court of England and Wales being the Court of Session...
- lawtalkinghuman 6y ago
  This is correct, though I suspect the UK government aren't going to try and disobey the ruling just in Scotland.
  - that_guy_iain 6y ago
    I would assume they‘ll appeal and go to Supreme Court then the ruling would apply everywhere in the UK. But even then GCHQ is in England wouldn’t their actions fall under English law?
    - M2Ys4U 6y ago
      Assuming they're allowed to appeal all the way to the Supreme Court, of course. The Court of Appeal would be the next step.
andybak 6y ago
For country specific things (US included) can we put the country in the post title? I guessed this was UK but many people won't.
simonh 6y ago
The courts are basically saying ok, fine, you can have a general warrant, however the legislation would have to specifically authorise the scope of the warrant. But the whole point of general warrants is to not have to specify the scope. That basically makes general warrants worthless, because it seems like you'd have to anticipate the specific details needed in the warrant and put that in the law authorising the warrant. In practice that probably means specific details like the names of the people, places and property subject to the warrant. Clearly that's not practical to put in law, but how else do you ensure that a general warrant applies in any specific case? It's a subtle but beautiful Judicial FU.
- beojan 6y ago
  No, they're saying "if you want general warrants, you need a law that specifically permits general warrants".
  - simonh 6y ago
    Section 5(2) of the statute establishing this warrant is literally titled “Warrants: general” and explicitly tries to exclude actions under these warrants from judicial review.
noodlesUK 6y ago
Surely we don’t actually use general warrants in the UK as legal justification for all the shit that we surveil? Does RIPA not give a huge statutory list of what can be done (pretty much everything is fair game)?
- pmyteh 6y ago
  This was a case about hacking, rather than surveillance. That's not authorised by RIPA, but under earlier 1994 legislation, and needs a specific warrant from the Secretary of State.
Stierlitz 6y ago
> .. the UK High Court has ruled that the security and intelligence services can no longer rely on ‘general warrants’ .. обманывать ;]
- skinkestek 6y ago
  Looking up обманывать it seems to mean "lie to" or deceive, but I don't really get the context: is it a standing Russian joke or something?
  - nsajko 6y ago
    Indeed, it means "to deceive". Judging by the user's other comments, they are trying to express vague and incoherent but confident distrust of "the system".
LatteLazy 6y ago
It's worth noting that unlawfully (illegally) collected evidence is still admissible in UK courts (with exceptions). So this ruling may make little real difference...
- nsajko 6y ago
  Oh how I wish that the UK way of admitting illegally obtained evidence spreads around the world. In the EU country I live in, judgments regularly get thrown out after guilt has been established because of technicalities like these. And, yes, this applies to high-profile corruption cases, and, yes, the politicians (and similar stars) proceed to play the ultralegalist card ("everything's OK and we're blameless because we're not in prison") and ignore the fact that the guilt has already been established. It sometimes even happens that a journalist records a call with some scum like that, gets a boast/confession out of them, and almost nobody cares because the call recording is not admissible as evidence without the consent of the guilty party. I mean, sure, part of the blame lies with the possibly incompetent and/or malicious law enforcement, prosecutors and the judiciary; but the justification for the rules of excluding otherwise valid evidence obtained illegaly just don't make a lot of sense to me, especially as they tip the scales against a fair society and towards corruption.
  - conanbatt 6y ago
    Accepting Illegally obtained evidence is accepting legally planted evidence. But I think I have an even stronger argument, which is that in a system where the state can get evidence any way, is a system where everyone can be made a criminal and prosecuted at the absolute discretion of power.
    - nsajko 6y ago
      > Accepting Illegally obtained evidence is accepting legally planted evidence. Whether evidence is illegally obtained is independent from whether it is planted. Or am I missing something? Similarly with your second point.

298 points by mpweiher 6y ago

Is anyone aware of an authoritative source detailing specific instances of where "general warrants" have been misused, and how? I know in general about what came out after Snowden of course, I'm just interested to learn more about specifics relating to these warrants.

mmhsieh 6y ago
This goes back farther than you are likely asking for, but general warrants were called out in the U.S. bill of rights and were alluded to in the declaration of independence because the British crown had been using them to investigate smugglers and tax dodgers, especially in the northeastern American colonies.
boomboomsubban 6y ago
Imagine a murder happened. A judge issues you a general warrant to search for anything suspected as evidence regarding the case. You now can now search anyone anywhere.
- HeWhoLurksLate 6y ago
  And, IIRC, the second part that makes it so worrisome is that the warrant holder can then go and use whatever evidence they find in other- or to start new- cases.
LatteLazy 6y ago
The bulk collection by intelligence agencies of phone and Internet data is the biggest example of a general warrant. There are more specific examples like when police demand the ID of everyone who's cell phone providers place them at a protest (aka GeoFences) or the details of everyone who searched for certain terms.
hedora 6y ago
This is a start: https://www.eff.org/issues/privacy https://www.eff.org/issues/privacy

unanswered 6y ago

So it appears that as of now, general warrants are disallowed in the UK and (in practice) permitted in the US. America's founding fathers are spinning in their graves.

DamnYuppie 6y ago
The foundering fathers did their part. We as the inheritors have failed miserably in holding onto the freedoms that were gifted to us.
- willcipriano 6y ago
  Thomas Jefferson said it best: "The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right."
  - PoachedSausage 6y ago
    That might have been true in Jefferson's day, lifespans were shorter. Now most western democracies are effectively gerontocracies, the young are bound to the wishes of the old. See Brexit.
    - function_seven 6y ago
      Lifespans weren't that much shorter in his day (provided you made it to 5 years old). He's not describing something that is "true" or not, but rather what ought to be. I think it's just as relevant today as when he wrote that.

kelchqvjpnfasjl 6y ago

From Stanford v. Texas Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer." The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"

deleted 6y ago
[deleted]
simonh 6y ago
Good one, that showed us Brits the right of it. #Cough# Civil Forfeiture #Cough#
- tinus_hn 6y ago
  Not to mention the constitution free zone around the borders.
  - JulianMorrison 6y ago
    Which is 100 miles deep and includes many major cities.
    - AnthonyMouse 6y ago
      You're underselling that one, because they count the coastline as a "border": https://www.bloomberg.com/news/articles/2018-05-14/mapping-who-lives-in-border-patrol-s-100-mile-zone https://www.bloomberg.com/news/articles/2018-05-14/mapping-w... > the border zone is home to 65.3 percent of the entire U.S. population

yuriko 6y ago

Judgment text: https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html

jojobas 6y ago

In a system where the government is essentially the majority of the parliament, a law to reinstate the previous practice will be passed pretty soon.

nicky0 6y ago
Not necessarily. Whilst the Priti Patel strain of "law and order first" MP is certainly there, a lot of Tory MPs are quite hot on civil liberties and this is the kind of issue they tend to rebel on.
- PoachedSausage 6y ago
  The kind of civil liberties they like are the rather limited kind, or only for the right kind of people (their voters). During the debate on the November lockdown, the word 'arbitrary' was used a lot, yet they are quiet on the arbitrary nature of the classification of Cannabis, no civil liberties for users of Cannabis (wrong kind of people).
  - Veen 6y ago
    Are you implying that cannabis users exclusively vote Labour? I suppose that explains Jeremy Corbyn.
    - PoachedSausage 6y ago
      No, not a specific political difference, more of a differnce of socio-economic/age/class/possibly even race. As we saw at the last election Corbyn wasn't that popular with some traditional Labour voters. Perhaps we will see some changes now that we are getting stories of Hard Working Families (TM) having to spend large sums of money to buy Cannabis based medications for their children.
  - tomatocracy 6y ago
    Actually there are a fair few Tories in favour of legalisation of cannabis. Crispin Blunt and Peter Lilley spring to mind as having been relatively forthright on this but quite a few quietly hold these views.

mtgx 6y ago

This is kind of hilarious, considering one of the top (public) reasons why David Cameron and Theresa May have been supporting Brexit is so that UK no longer has to abide by the EU Charter of Fundamental Rights, because the top EU court has slapped down the UK's mass surveillance regime a couple of times.

deleted 6y ago
[deleted]
SEMW 6y ago
That was the European Court of Human Rights. It's not a 'top EU court', or an EU court of any sort. It's a body of the Council of Europe, which is an entirely different institution (with a much larger international membership than the EU). It enforces the European Convention on Human Rights. (the EU does requires members to be CoE members, and so there were some people suggesting that after leaving the EU the UK might also leave the CoE - possibly including theresa may, I haven't checked - but that doesn't currently seem likely to happen) The EU Charter of Fundamental Rights is definitely a thing - basically a copy of the ECHR into EU law - but it's only applicable (1) to actions of EU institutions, (2) as a restriction on EU legistation, and (3) as an obligation on member states _when interpreting / implementing EU law_. It has no relevance to UK law other than that. (And what little relevance it would have had to the UK was further weakened since they had a partial opt-out to it that tried to get rid of the last of those for the UK!). The cases about UK surveillance legislation (eg [0]) were all ECtHR, not CJEU. [0] https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-6187848-8026299&filename=Big%20Brother%20Watch%20and%20Others%20v.%20the%20United%20Kingdom%20%20-%20complaints%20about%20surveillance%20regimes.pdf https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&...

arethuza 6y ago

Nitpick: I believe it is the High Court of England and Wales, not the High Court of the UK. The High Court in Scotland is the top level criminal court with the equivalent to the High Court of England and Wales being the Court of Session...

lawtalkinghuman 6y ago
This is correct, though I suspect the UK government aren't going to try and disobey the ruling just in Scotland.
- that_guy_iain 6y ago
  I would assume they‘ll appeal and go to Supreme Court then the ruling would apply everywhere in the UK. But even then GCHQ is in England wouldn’t their actions fall under English law?
  - M2Ys4U 6y ago
    Assuming they're allowed to appeal all the way to the Supreme Court, of course. The Court of Appeal would be the next step.

andybak 6y ago

For country specific things (US included) can we put the country in the post title? I guessed this was UK but many people won't.

simonh 6y ago

The courts are basically saying ok, fine, you can have a general warrant, however the legislation would have to specifically authorise the scope of the warrant. But the whole point of general warrants is to not have to specify the scope. That basically makes general warrants worthless, because it seems like you'd have to anticipate the specific details needed in the warrant and put that in the law authorising the warrant. In practice that probably means specific details like the names of the people, places and property subject to the warrant. Clearly that's not practical to put in law, but how else do you ensure that a general warrant applies in any specific case? It's a subtle but beautiful Judicial FU.

beojan 6y ago
No, they're saying "if you want general warrants, you need a law that specifically permits general warrants".
- simonh 6y ago
  Section 5(2) of the statute establishing this warrant is literally titled “Warrants: general” and explicitly tries to exclude actions under these warrants from judicial review.

noodlesUK 6y ago

Surely we don’t actually use general warrants in the UK as legal justification for all the shit that we surveil? Does RIPA not give a huge statutory list of what can be done (pretty much everything is fair game)?

pmyteh 6y ago
This was a case about hacking, rather than surveillance. That's not authorised by RIPA, but under earlier 1994 legislation, and needs a specific warrant from the Secretary of State.

Stierlitz 6y ago

> .. the UK High Court has ruled that the security and intelligence services can no longer rely on ‘general warrants’ .. обманывать ;]

skinkestek 6y ago
Looking up обманывать it seems to mean "lie to" or deceive, but I don't really get the context: is it a standing Russian joke or something?
- nsajko 6y ago
  Indeed, it means "to deceive". Judging by the user's other comments, they are trying to express vague and incoherent but confident distrust of "the system".

LatteLazy 6y ago

It's worth noting that unlawfully (illegally) collected evidence is still admissible in UK courts (with exceptions). So this ruling may make little real difference...

nsajko 6y ago
Oh how I wish that the UK way of admitting illegally obtained evidence spreads around the world. In the EU country I live in, judgments regularly get thrown out after guilt has been established because of technicalities like these. And, yes, this applies to high-profile corruption cases, and, yes, the politicians (and similar stars) proceed to play the ultralegalist card ("everything's OK and we're blameless because we're not in prison") and ignore the fact that the guilt has already been established. It sometimes even happens that a journalist records a call with some scum like that, gets a boast/confession out of them, and almost nobody cares because the call recording is not admissible as evidence without the consent of the guilty party. I mean, sure, part of the blame lies with the possibly incompetent and/or malicious law enforcement, prosecutors and the judiciary; but the justification for the rules of excluding otherwise valid evidence obtained illegaly just don't make a lot of sense to me, especially as they tip the scales against a fair society and towards corruption.
- conanbatt 6y ago
  Accepting Illegally obtained evidence is accepting legally planted evidence. But I think I have an even stronger argument, which is that in a system where the state can get evidence any way, is a system where everyone can be made a criminal and prosecuted at the absolute discretion of power.
  - nsajko 6y ago
    > Accepting Illegally obtained evidence is accepting legally planted evidence. Whether evidence is illegally obtained is independent from whether it is planted. Or am I missing something? Similarly with your second point.