Scotland Yard, Terrorism, and Encryption: How wording of charges contain hidden layers designed to shape public opinion
Several people objected to the claim that “Scotland Yard says HTTPS is terrorism” by asserting that Scotland Yard is following the law to the letter. Maybe they are, but that wasn’t the point of the rather harsh (and admittedly oversummarizing) headline the other day – the point is that the terrorism case discussed has very nasty undertones that need to be understood, addressed, and countered. This is best understood through examples from other times.
Two days ago, I posted about Scotland Yard’s case against an alleged terrorist, and how part of the terrorism charges were for the act of “developing an encrypted version of a blog site”, which sounds like publishing a WordPress over HTTPS. It probably is publishing a WordPress over HTTPS, but even if it weren’t, those charges could easily describe that act going forward, once this case is settled.
Let’s look at the charge as listed again.
Count 3: Preparation for terrorism. Between 31 December 2015 and 22 September 2016 [name redacted], with the intention of assisting another or others to commit acts of terrorism, engaged in conduct in preparation for giving effect to his intention namely, by researching an encryption programme, developing an encrypted version of his blog site and publishing the instructions around the use of programme on his blog site. Contrary to section 5 Terrorism Act 2006.
Those who objected to my interpretation are pointing out – and are justified in doing so – that in legalese, this should be read with the intent to perform actions that aid and abet as the primary crime of terrorism, and the description of the actual actions secondary, as such (my highlights):
Count 3: Preparation for terrorism. Between 31 December 2015 and 22 September 2016 [name redacted], with the intention of assisting another or others to commit acts of terrorism, engaged in conduct in preparation for giving effect to his intention namely, by researching an encryption programme, developing an encrypted version of his blog site and publishing the instructions around the use of programme on his blog site. Contrary to section 5 Terrorism Act 2006.
Rearranging a few words, this becomes “engaged in preparation for giving effect to assisting another or others to commit acts of terrorism”, which is easier on the eyes.
In thus objecting, these people are therefore entirely correct, but are missing the point: for if the above is true, if the above wording is sufficient, why isn’t that what Scotland Yard lists as the charge, instead of choosing something much more wordy? Why all those extra words? Is it just a courtesy to the understimulated Court, to give them some more material to read? No, obviously not. This is hard to see in one’s own context, so let’s instead compare to how the charge would read if it had been presented in the 1920s, and concerned aiding and abetting by providing entertainment (my highlights, changes, and redactions):
Count 3: Preparation for terrorism. Between 31 December 1925 and 22 September 1926 [name redacted], with the intention of assisting another or others to commit acts of terrorism, engaged in conduct in preparation for giving effect to his intention namely, by listening to samples of jazz music, composing jazz versions of classical music, and performing jazz music in front of an audience. Contrary to section 5 Terrorism Act 1926.
It becomes clearer now, doesn’t it? The above specifications of acts should have read just “preparing entertainment sessions” or something similar. There are certain words, that are typical for the era and what the establishment dislikes in that era, that just don’t belong in the description of what’s criminal – in this case, jazz.
(As a side note before moving forward, I’m not entirely sure that it’s correct to state that an intent to aid and abet terrorist acts is sufficient to be prosecuted for terrorism – it usually requires some sort of material assistance toward a specific deed; the thought alone is insufficient. Then again, there has been a barrage of “anti-terrorism” laws in the past decade, none of which make terrorism more illegal in any way, shape, or form; they are better described as “anti-due-process-for-people-we-don’t-like” laws. This barrage erodes many of the usual assumptions you could normally make about criminal law, presumption of innocence, and the burden of proof, so it’s possible Scotland Yard is legally in the right as the letter of the law stands today even if something isn’t, but can be claimed to possibly be used for terrorism, or something similar. Side note.)
So here’s what Scotland Yard is communicating in the second layer, in the undertones (my highlights and redactions):
Count 3: Preparation for terrorism. Between 31 December 2015 and 22 September 2016 [name redacted], with the intention of assisting another or others to commit acts of terrorism, engaged in conduct in preparation for giving effect to his intention namely, by researching an encryption programme, developing an encrypted version of his blog site and publishing the instructions around the use of programme on his blog site. Contrary to section 5 Terrorism Act 2006.
Again, it becomes clearer now, doesn’t it? Scotland Yard really is saying that encryption is terrorism — but not overtly. It’s more hinting at it. It’s creating associations. Quite deliberately. This is how PR works; this is literally “shaping public opinion 101”.
In comparison, this is how somebody from the net generation who don’t see encryption best practices as something odd, harmful, or plain undesirable would probably have worded the same thing:
Count 3: Preparation for terrorism. Between 31 December 2015 and 22 September 2016 [name redacted], with the intention of assisting another or others to commit acts of terrorism, engaged in conduct in preparation for giving effect to his intention namely, by researching appropriate communications channels, developing and deploying communications channels, and providing instructions for using said communications channels. Contrary to section 5 Terrorism Act 2006.
You will notice that this wording contains the same material acts, but omits the unnecessary word encryption as it’s simply best practice to apply it in all those cases – encryption is and should be the default in all communications, with its opposite cleartext pointed out instead. So, no. Scotland Yard included the word encryption in the charge for a very deliberate reason, and a court processing the charge is going to pick up on that word and consider it being an aggravating factor, just as Scotland Yard intended – just as would have been the case with jazz music in the 1920s.
It’s not supposed to work that way, but it does work that way.
Privacy remains your own responsibility. Encrypt.
