Tag Archives: anti-terror

The Guardian, GCHQ, the leaked security files and the airport arrest – an Australian view

By MARK PEARSON

It is fascinating when an area of your research suddenly launches into life in a real event.

That happened in the UK this week when Guardian editor Alan Rusbridger revealed senior government officials had ordered him to destroy computer hard drives containing leaked National  Security Agency (NSA) files or face court action which would almost inevitably result in an order to hand the material over.

We also learned the partner of a Guardian journalist was held at Heathrow Airport for nine hours under anti-terrorism laws, prompting the question ‘Could this happen in Australia?’.

The answer – put simply – is ‘Yes’, as I explained to Richard Aedy on Radio National’s Media Report this week.

You can download that interview here.

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I’ve been working with Griffith University colleague Associate Professor Jacqui Ewart and lawyer Joshua Lessing in this space and our article on Australia’s anti-terrorism laws (including some comparison with  the UK situation) was published in the latest edition of the prestigious Journal of Media Law, edited by the legendary media law expert, Professor Eric Barendt.

Our article’s citation is: Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

The abstract follows below.

I hope you enjoy the Media Report interview, and I’m happy to correspond with other scholars interested in this space, and to have contact with students looking to pursue higher degree research in this area and other topics of media and social media law, ethics and regulation.

——-

“The 9/11 terrorist attacks in the United States triggered an escalation of national security laws globally, including at least 54 in Australia, with some having implications for news reporting and open justice. This article backgrounds the Australian experience with such laws at a time when the United Kingdom is in the midst of a debate over the free expression impacts of its Justice and Security Bill. It uses case studies to highlight tensions between Australia’s security laws and the media’s Fourth Estate role and compares the Australian and UK human rights contexts. The article asks whether anti-terror laws restricting free expression should continue indefinitely in a democracy when national security breaches are likely to remain a major issue of public concern and there is no constitutional or human rights guarantee of free expression. It suggests a cautious approach to the renewal of such laws, particularly those restricting public debate about national security and its impact on human rights.”

– Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Our ‘news media and anti-terror laws’ article published in Journal of Media Law

By MARK PEARSON

It’s great when you get the chance to work with other scholars, so I’m delighted our collaborative article has been published in the latest edition of the prestigious Journal of Media Law, edited by the legendary media law expert, Professor Eric Barendt.

It’s an even greater pleasure to have co-authored it with my new colleague at Griffith University, Associate Professor Jacqui Ewart (the lead author), with expert research assistance from lawyer Joshua Lessing (also co-author). [Joshua’s late father John became a close family friend after teaching me in the very first subject of my LLM – Company and Partnership Law – way back in 1990.]

Our article’s citation is: Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

Here is the abstract to give you a taste, but you’ll need to subscribe to the journal or borrow it from a library to read the full article.

I’m happy to correspond with other scholars interested in this space, and with students who might want to pursue higher degree research in this area and other topics of media and social media law, ethics and regulation.

——-

“The 9/11 terrorist attacks in the United States triggered an escalation of national security laws globally, including at least 54 in Australia, with some having implications for news reporting and open justice. This article backgrounds the Australian experience with such laws at a time when the United Kingdom is in the midst of a debate over the free expression impacts of its Justice and Security Bill. It uses case studies to highlight tensions between Australia’s security laws and the media’s Fourth Estate role and compares the Australian and UK human rights contexts. The article asks whether anti-terror laws restricting free expression should continue indefinitely in a democracy when national security breaches are likely to remain a major issue of public concern and there is no constitutional or human rights guarantee of free expression. It suggests a cautious approach to the renewal of such laws, particularly those restricting public debate about national security and its impact on human rights.”

– Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Terror is no laughing matter – lessons from the #twitterjoketrial

By MARK PEARSON

Twitter and Facebook are great outlets for one-liners and satire, but police and security agencies are not known for their sense of humour. Trainee accountant Paul Chambers, 27, learned that the hard way when he was arrested on UK terrorism charges for jokingly tweeting a threat to blow up a British airport. Air traffic was delayed by a heavy snowfall and Chambers was desperate to visit a female friend in Northern Ireland, so he light-heartedly tweeted to her and his 650 followers: ‘C***! Robin Hood Airport closed. You have got a week to get your s*** together, otherwise I’m blowing the airport sky high!’ Police swooped a week later and he was questioned on the terrorism charges before being convicted and fined £1,000 on a lesser charge of causing nuisance. He later won an appeal in the High Court when the Lord Chief Justice agreed it had been a humorous remark rather than a threat. The case became known as the ‘Twitter joke trial’. I’m fairly confident Chambers would not go through all that angst again over a not so witty one-liner.

Journalist, blogger, tweeter and lawyer David Allen Green ( @DavidAllenGreen ‘Jack of Kent’ ) spoke recently on the issue to the Open Rights Group.

Across the English Channel, 23-year-old unemployed Frenchman François Cousteix was surprised one evening to find French police and US FBI agents arrive at his front door. Operating under the name ‘Hacker Croll’, he had made it his hobby to access celebrities’ social media accounts just for fun. He had accessed the social media account of celebrity Britney Spears but came to international security agencies’ attention when he hacked into the Twitter account of US President Barack Obama. He escaped with a five month parole sentence.

There is a simple lesson from these cases: do not joke about national security matters.

Governments throughout the world ramped up their national security laws in the wake of the terrorist attacks on the US in September 2001. Even in countries with a high regard for civil liberties and free expression, new powers were handed to security agencies and police to aid in the detection and arrest of suspected terrorists. Pressure mounted in western democracies for even tougher laws after the Bali bombings in 2002 and 2005 and the 7/7 London attacks in 2005.

Publishing restrictions in the name of national security existed long before 9/11. Sedition and treason laws encouraging public unrest, violence and the overthrow of rulers date back to feudal times when governments tried to enforce loyalty upon ordinary citizens. While many countries have phased out these ancient crimes, such laws are still used in some places as mechanisms for intimidation and repression. Anti-terrorism laws were also used in western democracies well prior to 2001. The UK passed special laws to respond to Irish Republican Army terrorism throughout the 20th century, while New Zealand introduced new restrictions after the French bombing of the Greenpeace boat the Rainbow Warrior in 1985.

But the early 21st century attacks on the West triggered a wave of new anti-terror laws impacting on the free expression of journalists and Internet users. Hundreds of anti-terror laws were introduced in the first decade of the 21st century under the banner of the so-called ‘War on Terror’.

America led the way with its USA ‘Patriot’ Act of 2001, in which the letters stand for: ‘Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism’. President Barack Obama’s administration extended the legislation for a further four years from 2011.

Others followed suit, including the UK, Canada, Australia and New Zealand. Ottawa software developer Momin Khawaja became the first person charged under Canada’s anti-terror laws but in 2011 challenged his conviction on constitutional grounds. In Australia, Belal Saadalah Khazaal was sentenced to 12 years in jail in 2009 for ‘making a document connected with assistance in a terrorist act’ after he created an e-book titled “Provisions on the Rules of Jihad” which allegedly targeted foreign governments and leaders. The High Court upheld his conviction in 2012.

There were too many anti-terror laws introduced internationally to detail here, but some can impact upon you if you are a cyber-journalist or blogger. They include:

  • Increased surveillance powers for spy agencies and police;
  • New detention and questioning regimes;
  • Seizure of notes and computer archives;
  • Exposing confidential sources to identification;
  • Closing certain court proceedings so they are unreportable;
  • Exposing bloggers to fines and jail if they report on some anti-terror operations;
  • Making it an offence to merely ‘associate’ or ‘communicate’ with those suspected of security crimes; and
  • Exposing bloggers and social media users to criminal charges if you publish anything seen as inciting terrorism.

Governments also go straight to search engines and ISPs and demand they remove material and, as Google’s Transparency Report documents, they often comply. But some have complained Google and Youtube have not responded quickly enough when asked to take down terrorism material. Burst.net certainly acted fast when the FBI advised it that some blogs it hosted under the free WordPress blogetery.com site contained terrorist material suspected of being used by the group al-Qaeda. It shut the site down, along with the 70,000 blogs it hosted. Blogetery resurfaced a month later under a different host.

The United Nations introduced a range of protocols that countries adopt minimum standards for combating terrorism. At the same time, the OECD acted to encourage Internet freedom by asking nations to open up cyberspace to freer and speedier communication. To the average blogger, the two positions might seem at odds.

A Mexican radio commentator and a maths tutor were jailed and faced a maximum 30 year prison sentence in 2011 on terrorism and sabotage charges after they tweeted false reports that gunmen were attacking schools in the city of Veracruz. The misinformation prompted parents to panic and some were involved motor accidents as they rushed to fetch their children.

“Here, there were 26 car accidents, or people left their cars in the middle of the streets to run and pick up their children, because they thought these things were occurring at their kids’ schools,” an official told Associated Press. The false reports followed weeks of gangland violence in the city.

“My sister-in-law just called me all upset, they just kidnapped five children from the school,” tutor Gilberto Martinez Vera allegedly tweeted. He followed that message with: “I don’t know what time it happened, but it’s true.” The other accused had retweeted the false reports to her followers. Experts described the tweeting as poor use of the medium, but not deserving of terrorism charges.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2012

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Counter-terror laws under review – our appearance at COAG

By MARK PEARSON

Griffith University colleague Associate Professor Jacqui Ewart (@jacquiewart) and I appeared before the Council of Australian Governments (COAG) hearing into the review of counter-terrorism laws conducted in Brisbane yesterday.

We explained our collaborative research on the subject, and called upon the committee to take account of the importance of free expression, open justice and transparency of process to a democracy like Australia.

The laws under review are listed here.

I began by explaining that national security laws introduced since September 2001 affected the ability of journalists to investigate into and report upon particular incidents, identify and communicate with sources of information for such reportage, preserve the confidentiality of such sources, report fairly and accurately court proceedings related to counter-terrorism, expose miscarriages of justice, and  to draw upon actual examples when covering the broader issues of national security and counter-terrorism.

Australia differed from other democratic nations in that it lacks written constitutional protection of free expression.

I suggested that given the absence of any such free expression protection here, there was a crucial need for public interest or media exemptions to provisions threatening free expression.

Perhaps the committee could appoint an independent adviser or a representative from a body such as the Australian Press Council to review any proposed legislation with an eye to its implications for free expression.

Dr Ewart made the following points in our submission:

When the anti-terrorism legislation was introduced in 2004 and 2005 there was much discussion about the potential impacts these laws would have on journalists and the public right to know about terrorism cases, but much of that discussion was at the time speculation. Since then we have seen demonstrable evidence of the impacts of those laws on the ability of journalists to report on national security matters and to inform the public. These impacts include but are not limited to:

  • Suppression orders are now routinely invoked in terrorism-related court cases to prevent journalists’ from reporting details of cases that may be in the public interest and may not be against national security interests. While there was recently a move towards cooperation between the media and the judiciary in relation to suppression orders (Operation Pendennis court trials under J Bongiorno), this is not standard practice.
  • Sedition laws have restricted freedom of expression in the media. The legal provisions regarding journalists reporting the detention of suspects under the ASIO Act have implications for journalists, and much broader consequences for individuals’ freedom of speech.
  • Media reliance on official spokespeople has increased because of arrest, questioning and detention restrictions once a suspect has been arrested, as evidenced by the controls of information flows by the Australian Federal Police in the arrest and charging of Dr Mohamed Haneef.
  • Recent demands by judges for journalists to reveal their sources of counter-terror stories, evidenced by the making of such demands upon The Australian’s Cameron Stewart regarding leaks from the Federal Police over the Holsworthy Barracks raids.
  • Further to the preceding point, the freezing of information about counter-terror operations by government agencies after the above incident where The Australian published an account of one operation before it started. This led to police/media protocols for future counter-terrorism stories.
  • The potential for the confidentiality of a journalist’s source being compromised through the investigative powers of anti-terror agencies. This may erode the public’s confidence in the media, preventing members of the public from approaching journalists with stories or information.
  • The readiness of counter-terror agencies and prosecutors to make use of raw footage and interview material captured by journalists as prosecution evidence in their cases against terror suspects, as per the Jack Thomas trial.
  •  A warning from an Attorney-General to an academic about his research involving the interviews with suspected terrorists overseas renders journalists’ interviews with terrorists on foreign territory problematic.

We are also unaware of potential problems for those arrested or questioned under the ASIO Act because of the restrictions placed on individuals in relation to telling others including the media they have been arrested or questioned and those restrictions extend to journalists.

This means that the ability of the media to freely – real national security implications notwithstanding – fairly and accurately report terrorism cases has been at times severely hindered by the legislation.

We concluded by recommending the review of the legislation specifically examines the question of the impacts of the legislation on journalists’ ability to cover terrorism cases and terrorism-related court cases, in order to ensure the protection of the public interest in such cases. We provided the committee with an extended explanation in the form of an article on the topic we recently submitted to an international refereed journal.

© Mark Pearson and Jacqueline Ewart 2012

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