New law would allow indefinite retention of data seized at ports

The Anti-Social Behaviour, Crime and Policing Bill is currently being debated in parliament and, if passed, will give a vast array of new powers to police, local authorities and other officials. It will also amend terrorism legislation to allow for the indefinite retention of data seized from persons detained at border crossings.

The bill has been heavily criticised in detailed briefings by JUSTICE and Liberty on a number of grounds, including its introduction of "injunctions to prevent nuisance or annoyance." These will replace Anti-Social Behaviour Orders (ASBOs), and like the outgoing Labour scheme will effectively criminalise behaviour considered to be 'annoying', although go further in terms of the ease with which they could be imposed and the punishments available, especially for children. [1]

Liberty also state that the bill "weakens key safeguards in our already heavily-criticised extradition system by removing the automatic right of appeal against extradition orders." [2]

The Bill's provisions grant the police sweeping new dispersal powers that would allow "any police officer of the rank of Inspector or above to order people to leave an area for up to 48 hours," allowing the officer to "specify the time at which a group must disperse, and the route by which they should do so." They will be able to use this power if they deem it "necessary to reduce the likelihood of anti-social behaviour, crime or disorder". [3]

The Bill also contains changes to the heavily-criticised Schedule 7 of the Terrorism Act 2000, which allows police officers at ports to "detain you for up to 9 hours in order to question you without giving you access to a solicitor. By law you are obliged to answer their questions, otherwise they can arrest you and take you to a police station in order to question you further - however at that point you can have access to a solicitor." [4]

The power has been widely used against Muslims, and has also been used to detain and question leftist political activists on a number of occasions. [5]

If the Anti-Social Behaviour, Crime and Policing Bill passes into law in its current form, the length of time that people could be detained for at ports would be reduced to six hours, and those held would be given access to a solicitor. While this is an improvement on the current situation, many are still likely to consider detention for six hours on the grounds of suspicion to be too long.

The Bill also proposes putting on statute the highly controversial police practice of using Schedule 7 to seize mobile phones, laptops, notebooks, or anything else carried by the individual, and the subsequent copying and retaining of the data they contain. It introduces amendments to Schedule 7 that would give police the explicit power to "copy anything" that is given to or found by the examining officer when conducting a search of person or property. While the police currently use the opportunity of detention under Schedule 7 to copy such data, this reflects practice rather than law.

The police will be able to retain any data seized "for so long as is necessary for the purpose of determining whether a person falls within section 40(1)(b)" of the Terrorism Act 2000, which defines a terrorist as anyone who "is or has been concerned in the commission, preparation or instigation of acts of terrorism." [6]

The Bill has just entered the "report stage", which "gives MPs an opportunity, on the floor of the House [of Commons], to consider further amendments (proposals for change) to a Bill which has been examined in committee." [7]

The Telegraph reported recently that while it is not known how many people have data copied by the police whilst detained at ports, "up to 60,000 people are 'stopped and examined' as they enter or return to the UK." Gus Hosein of Privacy International told the paper:

"Seizing and downloading your phone data is the modern equivalent of searching your home and office, searching through family albums and business records alike, and identifying all your friends and family, then keeping this information for years.

"If you were on the other side of the border, the police would rightly have to apply for warrants and follow strict guidelines. But nowhere in Britain do you have less rights than at the border.

"Under law, seizing a mobile phone should be only when the phone is essential to an investigation, and then even certain rules should apply. Without these rules, everyone should be worried." [8]

Further reading

[1] Anti-Social Behaviour, Crime and Policing Bill: JUSTICE submits briefing to the Public Bill Committee, Justice, 3 July 2013; Liberty's briefing on the Draft Anti-Social Behaviour Bill, Liberty, February 2013
[2] Anti-Social Behaviour, Crime and Policing Bill, Liberty
[3] Police set to get new dispersal powers, Network for Police Monitoring, 23 July 2013
[4] Schedule 7 - do's and dont's, Schedule 7 Stories
[5] Tom Anderson and Therezia Cooper, Schedule 7 of the Terrorism Act 2000: A police snooping tool to protect private profit, Corporate Watch, 27 February 2013; Police use anti-terror powers to detain anarchists on return from conference in Switzerland, Statewatch News Online, 23 August 2012
[6] Section 40, Terrorism Act 2000
[7] Parliament, Report stage (Commons)
[8] Tom Whitehead and David Barrett, Travellers' mobile phone data seized by police at border, The Telegraph, 13 July 2013

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