Danger: Poets at Work

I wonder if Günter Grass and Sheikh Raed Salah read one another’s work. Grass published a poem that criticised Germany’s arms sales to Israel and its difficulties with Iran, and was promptly declared persona non grata in Israel. Salah is the leader of an Islamic political party in Israel, and a poet. In one of his poems he wrote

You Jews are criminal bombers of mosques,
Slaughterers of pregnant women and babies.
Robbers and germs in all times,
The Creator sentenced you to be loser monkeys,
Victory belongs to Muslims, from the Nile to the Euphrates.

Maybe it’s better in Arabic. According to a Senior Immigration Judge the poem ‘misled’ the Home Secretary into thinking he was a dangerous rabble-rousing anti-Semite whose presence in the UK was not conducive to the public good. In 2007 a young woman (self-described as ‘the lyrical terrorist’) was found guilty of an offence of possessing ‘information of a kind likely to be useful to a person committing or preparing an act of terrorism’, under Section 58 of the Terrorism Act 2000 – the ‘information’ including poems she had written. She was no TS Eliot, more a bloodthirsty McGonagal. Her poem about the joys of decapitating the enemies of Islam included these immortal lines:

No doubt that the punk will twitch and scream
But ignore the donkey’s ass [sic]
And continue to slice back and forth
You’ll feel the knife hit the wind and food pipe
But don’t stop
Continue with all your might.

The Court of Appeal quashed her conviction. Although she had other explicitly jihadist material, the judges thought that the poem was not the sort of thing Section 58 was intended for, and may have confused the jury.

At least she was a bit more ‘lyrical’ than Grass, who wrote

And granted: I am silent no longer
Because I am tired of the hypocrisy
Of the West; in addition to which it is to be hoped
That this will free many from silence,
That they may prompt the perpetrator of the recognized danger
To renounce violence and
Likewise insist
That an unhindered and permanent control
Of the Israeli nuclear potential
And the Iranian nuclear sites
Be authorized through an international agency
By the governments of both countries.

Clunky. Maybe it’s better in German. It reminds me of the graffiti that used to greet train travellers approaching Paddington Station:

I am an angry passionate soul crying out in the midst of this torturous mediocrity.

The verses of Grass, Salah, and the lyrical terrorist lack the power of Shelley, the greatest English political poet, who excoriated the violent, repressive state of the country after the Peterloo Massacre in 1819 in ‘The Mask of Anarchy’ (‘I met Murder on the way/He had a mask like Castlereagh’ – the Home Secretary). In the same year Shelley wrote ‘England in 1819’, a touchstone poem:

An old, mad, blind, despised and dying King;
Princes, the dregs of their dull race, who flow
Through public scorn, mud from a muddy spring;
Rulers who neither see, nor feel, nor know,
But leech-like to their fainting country cling,
Till they drop, blind in blood, without a blow –
A people starved and stabbed in the untilled field,
An army, which liberticide and prey
Makes as a two-edged sword to all who wield,
Golden and sanguine laws which tempt and slay;
Religion Christless, Godless–a book sealed;
A Senate, Time’s worst statute unrepealed,
Are graves, from which a glorious Phantom may
Burst, to illumine our tempestous day.

This was incendiary stuff then. It’s not safe now. You can imagine what the Daily Mail would have made of it – and of Shelley and his romantic friends. Auden was wrong when he said poetry makes nothing happen.

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The New Snoop’s Charter

How nervous should we be about the government’s proposals to make it easier for the authorities to monitor online communications? Leave aside the formidable technical problems (as described by WMD Zone) – is there a solid objection in principle? Since they haven’t announced the details yet, here are some thoughts in general.

When I trained to be a lawyer no one told me how much time I would spend reading other people’s phone bills. Billing data is the staple of almost every criminal case of any substance. Information about who is talking or texting whom, how often, and where they are when they do it, can make a compelling circumstantial case to prove criminal activity – all the more so when combined with visual surveillance.

Criminals use phones to plan and carry out their crimes. Imagine a large drug trafficking business that could function without phones: impossible (although I was once in a drugs case which involved some dodgy-looking carrier pigeons). Or a planned shooting – the spotter follows the target, and at the critical moment calls in the shooter who is lurking nearby. By logging their calls and tracking their movements by cell-site (the mast that transmits the mobile signal) you can see them converge just before the shooting takes place, and move away afterwards.

Although the police and security services can lawfully tap suspects’ phones, the law has always prohibited the use in evidence of the ‘fruits’ of the interception – what the callers were actually saying. But a hidden microphone in their premises or cars which records them speaking into their phones or in face-to-face conversation, is frequently used to produce admissible evidence.

It would be hard to justify a ban on the police obtaining and making use of such evidence – provided its use is justified and subject to proper controls.

The Regulation of Investigatory Powers Act 2000 (‘RIPA’) provides a regulatory framework for monitoring online communications data, telephone interceptions, the use of bugs and microphones, ‘covert human intelligences sources’ (informants), and other ‘directed’ and ‘intrusive’ methods of surveillance by the authorities. RIPA was enacted largely as a result of criticisms by the Strasbourg Court of the previous ad hoc arrangements for the deployment of these techniques for spying by the state on its citizens. The Court held they were not ‘in accordance with the law’ – because there was no effective law, just a set of established procedures, and privacy rights under Article 8 of the European Convention were being breached. RIPA answered that complaint – how effectively continues to be a matter of debate. Some 60 public bodies have investigatory powers under the Act – including the power to demand communications data from internet service providers (ISPs). Part III of RIPA includes a power to demand the key to encrypted data on your computer, with a penalty of 2 years imprisonment for failure to disclose it. This power has been used in prosecutions of animal rights activists. RIPA also established the Investigatory Powers Tribunal to which members of the public can complain if they think they have been spied on in breach of the rules. According to the Tribunal’s 2011 Annual Report,(http://www.iptuk.com/docs/IPTAnnualReportFINAL.PDF),  it received 210 complaints in 2010, and upheld six of them. Make of those figures what you will.

So the state has already taken great powers, and has regularly added to the number of public bodies which may exercise them. The present plan to extend those powers to monitor online activity may be the thin end of the wedge – but don’t forget that the thick end came first, with RIPA, in 2000.

There is a bigger question, about where the law ends. For reasons given in a different context in my statement to the Leveson Inquiry, I do not believe that what people do online is or should be exempt from the general law. This is hardly controversial – who would seriously suggest that there should be no remedy for potentially criminal conduct which happens to take place online rather than on the phone or in person? So once that is clear, it surely follows that law enforcement agencies should take an active interest in suspicious online activity – as they obviously do. If I am planning a drugs importation, or a bombing, or the abduction of young children, and I am doing it by reference to certain websites and by talking to fellow-criminals via a social network – shouldn’t the police be permitted to investigate? How can they investigate without having access to records of my online activity?

I have no idea how GCHQ operates but its monitoring systems must have alerts and triggers that identify internet or phone traffic of potential interest. It is inconceivable that every single email, phone call or access to websites is monitored, much less evaluated – even if the capacity to store and access all of them exists.

The last government proposed a massive central database in which everything would be stored forever: a grandiose and foolish scheme, beaten off by a coalition of people from the other parties, the IT industry and elsewhere. At present, ISPs must retain all their data for 12 months, and are then permitted to destroy it. The authorities can access it within that time, under the RIPA framework. Apparently, the new proposal is for them to monitor online communications in real time, as they are happening – as they do when they intercept phone calls or use bugs in cars or premises.

Now we should not place (too) much trust in the state or the goodwill of our elected and appointed officials. They have to be kept under close scrutiny at all times or they will abuse their powers. But a state whose institutions are subject to the rule of law is less likely to commit serious abuses against its citizens, or get away with them when it does. A police state is the opposite of a state based on law – where law implies more than obeying the rules through fear, but rather a complex texture of consent, dissent, argument, and impartial resolution of disputes. A police state will always be corrupt and will grant impunity to the corrupt; a state based on law will have the ability to call the corrupt to account. We do not live in a police state. If you can’t tell the difference, have a look at North Korea, Iran, or Belarus. It is certainly objectionable for jobsworths in the town hall to spy on people who disobey dustbin ordinances, but let’s keep it in proportion.

Agencies that have coercive powers and are permitted to intrude on private life need strict regulation. I would favour a presumption against interception of all private communications (phone calls, online, letters) without proof of a compelling and urgent reason, to be assessed by a Court rather than police officers, civil servants or ministers. There should be effective sanctions to punish those who breach the rules – immediate dismissal and prosecution would be a start.

Let’s wait and see what the eventual proposals look like, and what the safeguards are. Meanwhile, the Ministry of Justice’s plans – driven by the spy agencies – to hold civil trials in secret to avoid embarrassing the spies, is a far more sinister development, and far more inimical to the rule of law.