The detention was entirely legal provided that the UK authorities perceived Miranda to pose some form of terrorist threat. Under those circumstances, the Regulation of Investigatory Powers Act (RIPA) gives the police the further authority to require the suspect to hand over any decryption keys to his computers. This explains Miranda’s subsequent comment, “They got me to tell them the passwords for my computer and mobile phone," Miranda said. "They said I was obliged to answer all their questions and used the words 'prison' and 'station' all the time." Failure to hand over crypto keys can lead, and already has led, to the imposition of a prison sentence in the UK.
But the incident raises numerous questions that impact everyone’s security. The first is the scope of the Terrorism Act, which can be interpreted to apply to almost any situation – just as the PATRIOT Act is given wide interpretation in the US. The entertainment industry has long claimed that copyright infringement should be covered by anti-terrorism laws because the proceeds of piracy could be used to fund terrorism. “A good example is copyright infringement,” wrote Washington’s Blog last week. “The Patriot Act has been invoked in connection with copyright infringement … such as by a fan of the tv show Stargate SG-1.”
US authorities have already labeled Edward Snowden a ‘terrorist.’ If Snowden is a terrorist, then Glen Greenwald is aiding terrorism by publishing Snowden’s revelations; and David Miranda could be aiding Glen Greenwald by acting as a courier between Greenwald and Laura Poitras who has been working with Greenwald in Germany. Taken together these concerns would be enough for the UK police to legally justify Miranda’s detention and equipment confiscation. It is, however, a tenuous argument – the suggestion that the partner of a journalist is actually a terrorist seems far-fetched.
The danger for everyone’s information security is that the incident demonstrates how far the Terrorism Act and associated anti-terrorist laws can be stretched to enforce access to, effectively, anyone’s decrypted computers. That person does not need to be in the UK if he or she merely gets off an aircraft at a UK airport while en route to a different destination.
Two further issues involve the motivation for the detention, and the level of cooperation between the UK and US law enforcement and intelligence agencies. It is possible that the authorities genuinely believed that unrevealed Snowden documents would be found on Miranda’s computers. If this had been the case, then Miranda could be charged with being in possession of classified material. None were found, which raises the question of whether the detention was based only on intimidation.
In the US, it is generally accepted that one plank of the Obama administration’s battle against whistleblowers is simply that: intimidation; to make whistleblowing so dangerous and uncomfortable that nobody will do it. As this report is written, the world awaits the sentencing of Bradley Manning. Yesterday the prosecution demanded a prison sentence of 60 years.
The intimidation argument is given further credence by Alan Rusbridger, editor of the Guardian. In his own post on Comment is Free, Rusbridger yesterday described months of government pressure to hand over or destroy the Snowden material (something that he explained he could not do simply because of the international nature of modern journalism). Eventually, he writes, “one of the more bizarre moments in the Guardian's long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. ‘We can call off the black helicopters,’ joked one as we swept up the remains of a MacBook Pro.”
The UK/US cooperation issue is one of openness. Few people doubt the close relationship between GCHQ and the NSA, but the extent of that cooperation is unknown. In this incident, the White House said that it had been given a ‘heads up’ on the impending detention, but had nothing to do with it. The Home Office in the UK said that it was purely a UK police matter. Asked why the UK government would give prior warning to the US government on a purely UK police matter, the Home Office declined any further comment.