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Laws only apply to the little people

The Government has quietly ushered through legislation amending the anti-hacking laws to exempt GCHQ from prosecution. Privacy International and other parties were notified of this just hours prior to a hearing of their claim against GCHQ’s illegal hacking operations in the Investigatory Powers Tribunal.

Privacy International

So basically the state broke the law, got caught breaking the law, and then when challenged, changed to law so exempt themselves from the law they broke.

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27 comments to Laws only apply to the little people

  • Andrew McGuinness

    You have to hand it to them, that’s pretty clever of them.

    The link if anyone’s interested in how you “quietly exempt GCHQ from prosection”: http://www.legislation.gov.uk/ukpga/2015/9/part/2/enacted

    The relevant text:

    44 Savings

    (1)The Computer Misuse Act 1990 is amended as follows.
    (2)In section 10 (saving for certain law enforcement powers)—
    (a)for “Section 1(1) above has” substitute “Sections 1 to 3A have”;
    (b)in paragraph (a), after “seizure” insert “or of any other enactment by virtue of which the conduct in question is authorised or required”;
    (c)in paragraph (b), after “seizure” insert “or of any other enactment or rule of law by virtue of which the conduct in question is authorised or required”;
    (d)for “the said section 1(1)” substitute “any of those sections”;
    (e)for “In this section “enforcement officer” means” substitute—“In this section—
    “enactment” means any enactment, whenever passed or made, contained in—
    (a)an Act of Parliament;
    (b)an Act of the Scottish Parliament;
    (c)a Measure or Act of the National Assembly for Wales;
    (d)an instrument made under any such Act or Measure;
    (e)any other subordinate legislation (within the meaning of the Interpretation Act 1978);
    “enforcement officer” means”.

  • Wait a minute. Are you saying that laws don’t exist independently of the people that make and interpret and enforce them?

  • Can they exempt themselves retroactively?

  • It’s just a big game of Nomic.

  • What good’s a leash if it binds the hand of the master as well as the throat of the slave?

  • Mary Contrary

    @MSimon: Yes.

    It’s worth reading carefully what the change is. s.1 of the Computer Misuse Act prohibits “unauthorised access to computer material”. The savings clause that effectively says this doesn’t apply to the intelligence services already existed.

    The savings clause did not previously cover the remaining offences:

    s.2 Unauthorised access with intent to commit or facilitate commission of further offences
    s.3 Unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer, etc.
    s.3A Making, supplying or obtaining articles for use in offence under section 1 or 3

    (The CMA dates from 1990, but s.3A was added later, in 2006, hence the funny numbering).

    So in 1990 it was already recognised that spooks and law enforcement might want to hack into people’s computers to gather intelligence. What has changed is that it is now said that they may want to hack into computers to make it easier to hack into those same computers later, to break those computers, and also to supply DIY-hacking kits to each other.

    This isn’t a mere “clarification”, as the government now pretends. You don’t create three new offences and give the spooks an exemption for just one of them by accident. Instead, it looks like a change in the attitude towards what the spooks and law enforcement are for. In 1990, they were gathering evidence or intelligence; now, they exist to keep the public under a general state of constant surveillance.

    Giving the spooks and law enforcement carte blanche to break other people’s computer systems strikes me as particularly worrying. Even the government didn’t think this appropriate back in 1990.

  • Russ in TX

    The primary equality must always be between those who pass the laws, and those who obey them. Everything else is just another road to Pharoah.

  • Ximo Bravo

    I’ve quoted this before here:

    “These decrees of yours are no different from spiders’ webs. They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth.” — Anacharsis (6th century BC) discussing Solon’s laws with him, as quoted by Plutarch, in Solon ch. 5; translation by Robin Waterfield from Plutarch Greek Lives (1998) p. 50.

  • Mr Ed

    MSimon

    Can they exempt themselves retroactively?

    Here in the UK, yes, by an Act of Parliament is would be possible to revoke the laws that applied as if they never had effect. The only possible brake on that might be a complaint under European law or more like the European Convention on Human Rights. And as the Crown may control the conduct of prosecutions and discontinue private prosecutions, and in Scotland (where the Crown as prosecutor is under control of the Scottish government, not the UK government) there would be no scope in reality for any private cases.

  • Don’t your intelligence and law enforcement services enjoy sovereign immunity in the UK, as they do here in the United States?

    If so, why would they need to retroactively exempt themselves?

  • Mr Ed

    Ferox,

    Only the Sovereign herself as a person has immunity from prosecution in the UK, but as these laws are statutory offences, they can make certain categories of people liable or not liable as the case may be, per the wording of the statute, by granting an exemption for ‘persons acting under the authority of the Secretary of State’ etc.

    However, if a Common Law offence was involved, then there would need to have been an excuse that the act that amounted to a Common Law offence, was authorised by law rather than exempt from prosecution.

    In the 1950s, I understand that torture was regarded as authorised by the Royal Prerogative (i.e. the Crown’s residual powers not restricted by the Common Law or statute) in dealing with Soviet spies.

  • Thanks for the response. That’s fascinating to me; I had assumed that the title of Queen (or King) was purely nominal these days, but if the Crown is exempt from the law then it really isn’t nominal at all.

    Still, I suppose there is something to be said for having one person exempt from legal consequence rather than an entire bloodthirsty class of people, as we do. Our prosecutors and SWAT teams run amok, boots splashing through the blood of some of our unfortunate citizens, and only very very rarely can anything be done about it.

  • RRS

    Rocco,

    At risk of irritating my friend Laird:

    We are talking about Rules made by men for specific objectives of their times and circumstances, which rules, made for the objectives of men are part of the government of men by men. To spare my friend, I will not mention another form of government.

    In England, as I understand its Constitution, Parliament has absolute sovereignty. It is composed of humans (“men”) thus vested with absolute sovereignty. Any Monarch may be limited, but Parliament is not.

  • William O. B'Livion

    @Rob Fisher
    > It’s just a big game of Nomic.

    I’d never heard of Nomic, and was going to ripsote that no, it’s more like Calvin-ball. but yeah, same thing.

  • Nicholas (Self-Sovereignty) Gray

    I suppose the legal fiction would be that the Crown takes the advice of the Ministers and Parliamentarians, so if anything is wrong, then the evil advisers are to be blamed.

  • Nicholas (Self-Sovereignty) Gray

    And as for ways to limit the state, I favour time-share government. If you choose to be a citizen, then you would time-share the tasks (like paramilitaries and Community services), and your reward would be to directly vote on any and all laws. I also favour Canton-type levels of government, with moving Conventions instead of a fixed center of federal power.

  • Shlomo Maistre

    Sovereignty does what it wants and sovereignty lies about why it does things (but, the astute reader points out, I repeat myself).

    Lest we forget our Lenin: who – whom? In a democracy, it is the bureaucracy that rules. And when a law is sufficiently inconvenient to those who rule, that law will change. Because written law does not alter the constitution of power of a nation. And power, by definition, RULES.

    The simple fact is that laws cannot, do not, and will not govern. Only people govern people, which is one of those facts libertarianism is unable to digest.

    Upon realizing that written law changes not the constitution of power of a nation, that good governance springs from centralized, secure, and stable command, that democracy by design rewards those who most egregiously sacrifice long-term welfare for the sake of short-term benefits, libertarians become reactionaries.

    Consider trading in Mises, Rothbard, and Bastiat for Maistre, Carlyle, and Bonald. The world makes a lot more sense over here with the Grand Inquisitor.

  • Shlomo Maistre

    Perry,

    Laws only apply to the little people.

    Pretty much correct. Not saying it’s a good thing. But it’s more or less true.

    The question, of course, is not “how do we change an inevitable fact of the universe” but rather “how do we minimize the harm done by an inevitable fact of the universe”.

  • William O. B’Livion: See also Mornington Crescent. I think it’s like that but with jail instead of Mornington Crescent.

  • mojo

    “Shut up, slave!”

  • Shlomo Maistre
    May 19, 2015 at 2:42 am

    Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them. Fredrick Douglas

    =======================

    Which explains why the depredations of Prohibition enforcement a delivered mainly to Blacks in America. They will stand for it.

    =======================

    From “Our Man In Havana” by Graham Greene:

    ‘Did you torture him?’

    Captain Segura laughed. ‘No. He doesn’t belong to the torturable class.’

    ‘I didn’t know there were class-distinctions in torture.’

    ‘Dear Mr Wormold, surely you realize there are people who expect to be tortured and others who would be outraged by the idea. One never tortures except by a kind of mutual agreement.’

    ‘There’s torture and torture. When they broke up Dr Hasselbacher’s laboratory they were torturing … ?’

    ‘One can never tell what amateurs may do. The police had no concern in that. Dr Hasselbacher does not belong to the torturable class.’

    ‘Who does?’

    ‘The poor in my own country, in any Latin American country. The poor of Central Europe and the Orient. Of course in your welfare states you have no poor, so you are untorturable. In Cuba the police can deal as harshly as they like with émigrés from Latin America and the Baltic States, but not with visitors from your country or Scandinavia. It is an instinctive matter on both sides. Catholics are more torturable than Protestants, just as they are more criminal. You see, I was right to make that king, and now I shall huff you for the last time.’

    ‘You always win, don’t you? That’s an interesting theory of yours.’

    ‘One reason why the West hates the great Communist states is that they don’t recognize class-distinctions. Sometimes they torture the wrong people. So too of course did Hitler and shocked the world. Nobody cares what goes on in our prisons, or in the prisons of Lisbon and Caracas, but Hitler was too promiscuous. It was rather as though in your country a chauffeur had slept with a peeress.’

    ‘We’re not shocked by that any longer.’

    ‘It is a great danger for everyone when what is shocking changes.’

  • Shlomo Maistre

    MSimon,

    Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them. Fredrick Douglas

    Like so many modern sophistries of the enlightened era, this logical truism is a self-fulfilling prophecy, exclusively pertinent to the present moment.

    The real question is how the degree of “injustice” imposed on a people can be minimized over the long-term.

    But then, to accept that oppression is an intrinsic trait of human society generally requires an understanding as to how society comes about rather more nuanced than that which the modern academe can muster.

    Maistre:

    It is certainly true, in an inferior and crude sense, that sovereignty is based on human consent. For, if any people decided suddenly not to obey, sovereignty would disappear; and it is impossible to imagine the establishment of a sovereignty without imagining a people which consents to obey. If then the opponents of the divine origin of sovereignty want to claim only this, they are right, and it would be quite useless to dispute it. Since God has not thought it appropriate to use supernatural agents in the establishment of states, it is certain that all developments have come about through human agencies. But saying that sovereignty does not derive from God because he has made use of men to establish it is like saying that he is not the creator of man because we all have a father and a mother.

    Rousseau:

    Liberty is a food easy to eat, but hard to digest; it takes very strong stomachs to stand it. I laugh at those debased peoples who, allowing themselves to be stirred up by rebels, dare to speak of liberty without having the slightest idea of its meaning, and who, with their hearts full of all the servile vices, imagine that, in order to be free, it is enough to be insubordinate.

    O proud and holy liberty! if those poor people could only know thee, if they realised at what a price thou art won and preserved; if they felt how much more austere are thy laws than the yoke of tyrants is heavy: their feeble souls, enslaved by passions that would have to be suppressed, would fear thee a hundred times more than slavery; they would flee from thee in terror, as from a burden threatening to crush them.

  • Mr Ed

    Very tangential but sort of OnT, a little person and the law: Mr Bernie Ecclestone, the Formula 1 ‘impresario’ has been landed with a tax bill by HMRC of over £1,000,000,000 (well perhaps some family trusts and/or him, the article does not make clear). Mr Ecclestone does however, have the right to seek a judicial review of his tax demand (and he can afford to, presumably), so at least here, the grasping State can be called to account over our tax affairs by court action. I wonder if in the USA he would have been so fortunate.

  • Laird

    Mr Ed, yes, in the US there certainly is an appeals process to contest claims by the IRS. We have a special federal Tax Court specifically for that purpose (whose rulings themselves can be appealed all the way to the Supreme Court) or, in the alternative, you can pay the tax and then sue for a refund in the Court of Claims. We’re all about Due Process over here!

  • Mr Ed

    Laird, Thanks for that, I was wondering if one might face asset seizure etc. by the IRS on a pay-now, query later basis similar to RICO (as I understand it).

    Here the situation is unusual as instead of gong to tax commissioners, Mr E is seeking a review of the bureaucratic decision to resile from an agreement as to tax liability made and settled in the relatively distant past, but one which our tax authorities appear to regard as void due to non-disclosure, or against natural justice (or plain wrong) as the case may be.

    ‘The USA, where taxes are due, so is process.’ hardly a motto for the IRS as I understand it. However, I was told once by someone who had visited the IRS from the UK’s then Inland Revenue, that they had a huge tax ‘production line’ in a tax office, where a return would pass along a chain of officials, each of whom would look at one aspect of the return, compute or query it, then pass it on, as if Henry Ford had been brought to the IRS. It sounded like a vision of a bureaucratic hell to me.

  • Laird

    Mr Ed, our asset forfeiture laws are an absolute disgrace (as has been previously discussed here), but the IRS’s seizure rules are a different kettle of fish. It does have the power administratively to freeze bank accounts, impose liens on property, etc., but the rules and, more importantly, the remedies for improper use of that power are substantially different and, in general, are not too terrible. (My comparison of IRS rules to other asset forfeitures is based on my readings about the latter; I’ve never been personally involved with such a case. I am, however, admitted to practice before the Tax Court, although I’ve never actually appeared there.)

    As to the IRS’s “production line”, that’s certainly possible. However, many years ago my wife worked as an auditor for the IRS (in two different field offices), and that’s not how either of her offices worked. Each auditor handled a case from start to finish (that is, until appeal). Of course, processes could have changed significantly since then.