Although I hate to do it, I feel bound to use one bad piece of legislation to show up shortcomings in an even worse piece.

 

2016-02-12 19.40.09

I’ve been reading through the draft Investigatory powers bill and had to stop when I got to page 16.  This section covers “Equipment Interference”.

“Equipment interference allows the security and intelligence agencies,  law enforcement and the armed forces to interfere with electronic equipment such as computers and smartphones in order to obtain data, such as communications from a device.
Equipment interference encompasses a wide range of activity from remote access to computers to downloading covertly the contents of a mobile phone during a search.”
Page 16 Draft Investigatory Powers Bill 2015
As you can see it’s a pretty broad brush, among other things encompasses activities that the general public would call hacking.    Now, should this be enacted I can see a conflict here with the 1990 Computer Misuse act.

“(1)A person is guilty of an offence if—

(a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer [F1, or to enable any such access to be secured] ;

(b)the access he intends to secure [F2, or to enable to be secured,] is unauthorised; and

(c)he knows at the time when he causes the computer to perform the function that that is the case.

(2)The intent a person has to have to commit an offence under this section need not be directed at—

(a)any particular program or data;

(b)a program or data of any particular kind; or

(c)a program or data held in any particular computer.

[F3(3)A person guilty of an offence under this section shall be liable—

(a)on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both;

(b)on summary conviction in Scotland, to imprisonment for a term not exceeding [F412] months or to a fine not exceeding the statutory maximum or to both;

(c)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.”

Computer Misuse act 1990.
As you can see such activities as described in the draft bill would fall squarely under this act and would be a criminal offence.  Nowhere in the 1990 act is there any exclusion or statutory defence listed.
Now, I’m no lawyer, but the only way out for the government would be to amend the 1990 act with a clause that effectively would say “All this is a crime, but if we do it it’s OK.”
Again I’m no expert, but I would hazard to suggest that any government that exempts itself from it’s own criminal laws in tending towards the despotic, tyrannical wing of governance and is already a fair way down the slippery slope of no longer representing the people.

[EDIT]
Moments after writing this I came across this news item.
“GCHQ is operating within the law when it hacks into computers and smart phones, a security tribunal has ruled.”
BBC News
Privacy International had challenged the government over the practices revealed by Edward Snowden.
“GCHQ admitted its agents hack devices, in the UK and abroad, for the first time during the hearings.”
BBC News.
The hearing was conducted by The Investigatory Powers Tribunal, a panel of senior judges.  What I am having trouble comprehending is how an unelected panel can seemingly over rule statute Criminal law and common law?
Taking the whole thing further if Theresa May decided that people with red hair were a threat to public safety and instructed the security services to execute all persons with red hair, it seems all she would need is a panel of judges to rubber stamp it as lawful.  I don’t think it a step too far to say that when a government can routinely excuse itself from it’s own criminal code we are in a very bad place as far as democracy goes.

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