UK Activist Convicted Under Terror Law For Refusing “Digital Strip Search”

A British counter-terrorism law has been used to convict an activist for an offense that has nothing to do with terrorism: refusing to reveal his iPhone PIN and MacBook password to authorities.

Muhammad Rabbani, 36, was found guilty by a judge at Westminster Magistrates Court on Monday, September 25, of wilfully obstructing an investigation by officers from the Metropolitan Police who wanted access to his devices.

Rabbani works as the International Director for the group CAGE, where he plays an instrumental role in bringing to light human rights violations and torture abuses, seeking justice and accountability for victims of such abuses.

On November 20, 2016, Rabbani flew into London Heathrow Airport (LHR) from Doha, Qatar, where he was investigating highly sensitive allegations of U.S. torture. He was stopped at the airport by authorities — a regular, predictable occurrence upon returning from his frequent travels for work — and interrogated under powers granted to officers in questioning people they suspect of being linked to terrorism. He was arrested and taken into custody after refusing to surrender his iPhone PIN and laptop password. For that single act, Rabbani has been found guilty of a terrorism offense.

Under Schedule 7 of the UK’s Terrorism Act 2000, a person can be detained for up to six hours, have no right to remain silent, have no right to an attorney, and refusing to answer any question or provide passwords to electronic devices is itself an offense.

Rabbani was ordered by the court to pay £620 in costs and fees, and was released on a one-year conditional discharge, which suspends any punishment so long as he does not violate any laws for the next 12 months.

Rabbani addressed a crowd of supporters and press outside the courthouse after receiving the verdict:

“Today’s judgment based on the judge’s and prosecution’s acceptance that I am of good character and worthy of belief highlights the absurdity of Schedule 7 law. They accept that at no point was I under suspicion and that, ultimately, this was a matter of having been profiled at the port. There are important implications for our collective privacy, as Schedule 7 acts as a digital strip search.

“I took the decision to not raise the details of an important torture case before my arrest. Ultimately, I have been convicted of protecting the confidentiality of my client. If privacy and confidentiality are crimes, then the law stands condemned. CAGE and I are glad we brought this case and the result indicates that our only option is to change the law.”

Rabbani and his legal counsel have already submitted the first round of documentation for their appeal. They intend to formally announce their motion to appeal once it is accepted by the court.

The activist recalls how on three or four occasions, when questioned by the judge and his barristers, the police officers confirmed that they knew who he was, that he worked for CAGE, and they understood the nature of that work and the group’s long history in defending victims of torture and abuse from state crimes. Additionally, they confirmed that Rabbani was never under any suspicion; even in court as the defendant, he was not suspected of any formal crime.

At the start of the hearing, the officers initially gave the impression that they didn’t know who Rabbani was, and that it was just a random stop. However, upon the insistence of his barrister and eventually the judge herself, they consequently admitted to knowing Rabbani very well, as well as which organization he worked for and the work they did. Therefore, as argued in Rabbani’s defense, being aware of the nature of his work, the officers should have known that he would likely be in possession of sensitive and confidential documents and material, some of which may be legally privileged.

In response to the judge’s inquiry into the reason they stopped Mr. Rabbani, the officers simply replied, “We can’t confirm or deny what the reason is.”

Rabbani actually volunteered to cooperate with the authorities who stopped him at the time, provided they did not cross a red line concerning the protection of his client’s confidentiality.

Rabbani explains:

“I am bound by the law, or coerced by law, to cooperate and comply with all the provisions, and I have. There’s no allegation against me of that. The red line was, when it comes to other people’s information and other people’s privacy and confidentiality, that’s something I can’t, I don’t have the right to surrender that. It’s immoral, it’s unethical, it’s not professional, either, and it actually goes against all the standards and ethics of many professions, including the legal profession, the medical profession and all types of professional roles where a person is responsible for another member of the public.

“That was the red line and I made that clear to the court as well of that. If I had been given the option, choice, to obtain consent from those particular survivors of abuse, then I would have taken the option, got their consent and then complied. I think that would have been the moral and ethical thing to do. Of course, I was denied the option, which then meant I had no choice but to refuse my passwords.”

Last year, in a significant victory for privacy rights, a judge in the David Miranda case ruled that Schedule 7 was “not subject to adequate safeguards against its arbitrary exercise.” (In August 2013, Miranda, the partner of Intercept co-founding editor Glenn Greenwald, was similarly detained at London Heathrow Airport and also interrogated under Schedule 7. Miranda had been assisting Greenwald’s reporting on highly sensitive official documents concerning extensive government surveillance leaked by National Security Agency whistleblower Edward Snowden.) As a result, the British government modified a code of practice that outlined how officers should conduct their searches. Subsequently, officers are now told to “cease reviewing, and not copy” information which they have grounds to believe is attorney-client privileged, is journalistic material, or is another kind of information held in confidence, which a person has “acquired or created in the course of any trade, business, profession or other occupation.”

Rabbani was aware of this crucial change and felt that the police were overstepping their recently narrowed authority. “I told them the info on there [my electronic devices] was confidential and sensitive — relating to vulnerable people,” Rabbani told The Intercept. “But they ignored that. They said, ‘No, we have the power to take your devices and to compel you to give your passwords.’”

The situation reached an impasse. Rabbani told the police that he would not turn over the passwords, and he was not going to change his mind. The officers arrested and handcuffed him, then escorted him through the main concourse of the airport into the back of a police van. He was taken to a nearby police station, held in a cell for about nine hours, and later released on bail.

Between 2009 and 2016, British authorities carried out 400,058 “examinations” of people under Schedule 7 — an average of about 50,000 per year, or 137 every day. But few of these individuals were arrested or charged with a crime. Through the same seven year period, according to government statistics, 370 people in the U.K. faced terrorism-related charges. That’s 0.09 percent of the 400,058 Schedule 7 searches, though the true percentage is likely smaller because not all of the 370 charges will have arisen as a result of a stop at the border.

Those who are examined under the law will usually be searched and questioned by officers. Like Rabbani, they may also have cellphones or laptops they are carrying inspected or confiscated.

Unknown to people who have gone through this process, however, is that authorities may have also covertly downloaded the contents of their phones and devices and sent copies to the British eavesdropping agency Government Communications Headquarters, or GCHQ (the UK’s version of the NSA).

Every month the agency was receiving a copy of phone data that had been “downloaded from unsuspecting travelers stopped at U.K. ports (i.e. sea, air and rail),” according to a classified GCHQ  document obtained by The Intercept from Edward Snowden. The data was placed in a central database that GCHQ employees could search, and it included “anything stored on a target’s phone,” such as contact lists, text messages, and call records.

The GCHQ document, which has not been published before and is dated between 2009 and 2010, states that the data is considered to have been “legally volunteered” under the Terrorism Act. However, it adds that the person searched “will not be directly told their phone is downloaded.” Most of the data is derived from devices belonging to people who were stopped at the request of domestic spy agency MI5. Some is also collected from people who have been stopped by police “arbitrarily or based on profiling,” but unless “substantial traces are found against that person,” their phones’ information is deleted, according to the document.

The cellphone data collection program was code-named PHANTOM PARROT, and it was integrated as part of a larger GCHQ surveillance system called LUCKY STRIKE. As of 2012, LUCKY STRIKE contained some one billion records and more than 40 different datasets, including people’s cellphone call logs, text messages, and financial records, GCHQ documents state.

GCHQ’s collection and storage of the phone data could violate Article 8 of the U.K.’s Human Rights Act, which states that “everyone has the right to respect for his private and family life, his home and his correspondence.”