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The UK’s Legal Response to Terrorist Communication in the 21st Century: Striking the right balance between individual privacy and collective security in the digital age.

Hale-Ross, SA (2017) The UK’s Legal Response to Terrorist Communication in the 21st Century: Striking the right balance between individual privacy and collective security in the digital age. Doctoral thesis, Liverpool John Moores University.

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Abstract

The dynamics of private life have changed along with the vast advancements in 21st Century communications technology. Private conversations no longer simply take place in the citizens’ home or through using a landline telephone, but rather online through the Internet, social media and through the ever-growing list of chat applications available on the smartphone that allows encryption. However, what often follows the legitimate use of technological advancements is criminal, or in this case terrorist exploitation. In the digital age it has become increasingly easy for terrorist groups to communicate their propaganda and for individual terrorists to communicate freely. This has served to create an investigatory capabilities gap thereby increasing the pressures on UK policing and security agencies’, in fulfilling their task of protecting national security and protecting the citizens’ right to life. In response, the UK and the European Union (EU) have attempted to close the capabilities gap and thereby ensure collective security, by enacting new laws allowing the law enforcement agencies’ to monitor electronic communications. The UK Government has recently enacted the Investigatory Powers Act 2016 (IPA) that introduces and preserves the ability to bulk collect, and retain electronic communications data, and to attain the operators’ assistance in decryption. Although the IPA attempts to take a human rights approach, the main contentious elements in the Act are those in relation to the authorities’ capabilities to intercept electronic communications data on mass, and to retain such data. Specifically, concerns currently surround the introduction of ‘backdoors’ into encrypted online services, and bulk interception and equipment interference warrants, and bulk personal data sets, all of which serve to weaken the security and individual data protection and privacy rights of, potentially, the entire population. The Court of Justice of the European Union (CJEU) has been the most influential judicial body in terms of individual data protection, and thereby on the UK’s law making process, through its key judgements in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others, and the conjoined case of Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and others (Digital Rights Ireland). The CJEU has done this by asserting the EU’s constitutional and legal prowess in protecting data protection, such as Article 8 of the Charter of Fundamental Rights and byway of two directives, namely the Data Protection Directive in 1995 and the e-Privacy Directive in 2002. In order to close the capabilities gap ensuring national security, the UK Government must ensure the law endures by safeguarding the cohesiveness with the jurisprudence of the CJEU and the European Court of Human Rights (ECtHR). The courts do focus on different elements, built around the Conventional rights, with the CJEU focused on data protection and the ECtHR on Article 8 right to privacy. To solve the balance between individual privacy and collective security, a human rights focus is required with emphasis placed on the practical reality that one cannot assert privacy rights, if one’s right to life is not fully protected in the first place. This focus must re-forge the UK’s counterterrorism legal structure. Taken in conjunction with the UK’s already broadly worded counterterrorism legal framework, particularly the lack of a freedom fighter exclusion within the legal definition of terrorism, the consequence is to almost criminalise any expression of a view that the armed resistance to a brutal or repressive anti-democratic regime, could in certain circumstances be justifiable, even where such resistance is directed away from non-combatant casualties’. Although the current counterterrorism structure is broad, the UK and the EU must police the Internet and remove the safe places used by criminals and terrorists. The IPA fashions a way within which to achieve this, but because it can be aimed at the whole population, subject to authorisation safeguards, and following historical case law dealing with blanket policies that effect the innocent, it is likely to receive continual CJEU and ECtHR judicial scrutiny. Post the UK’s exit from the EU however, the CJEU may become less important leaving the ECtHR to conduct the analysis. At present, the UK must follow CJEU rulings when the matter concerns EU law, whereas ECtHR decisions are merely recommendatory. The thesis found that overall, the balance between collective security and individual data privacy rights in the UK are fairly stable because of the role and importance of judicial review; judicial independence, and the over-arching scrutiny provided by commissioners and parliamentary committees. It is further argued that a blanket approach to retaining electronic communications data is necessary in finding the terrorist in the ever growing haystacks, because sometimes privacy rights and data protection must be curtailed to ensure the state can protect citizens’ rights to life.

Item Type: Thesis (Doctoral)
Uncontrolled Keywords: Terrorism
Subjects: K Law > K Law (General)
Q Science > QA Mathematics > QA75 Electronic computers. Computer science
Divisions: School of Law
Date Deposited: 30 Jun 2017 07:52
Last Modified: 30 Jun 2017 07:52
Supervisors: Lowe, D and Davies, B
URI: http://researchonline.ljmu.ac.uk/id/eprint/6726

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