Nearly two years after the High Court in London found that the nine-hour detention of David Miranda at Heathrow Airport had been lawful, the Court of Appeal has issued an [important rulingfinding the UK in breach of its international human rights obligations, particularly regarding the freedom of the press. In a rare move, the court issued a Declaration of Incompatibility on Schedule 7 of the Terrorism Act 2000 – the closest an English court can get to striking a law down.
It’s been a while since we’ve had a ruling on the legality of the NSA’s call records programme from a US federal court. Back in December 2013, judges in two federal courts gave conflicting verdicts on whether the domestic collection that was the subject of the very first Snowden revelation was constitutional.
The High Court in London has ruled that it is acceptable to detain journalists under terrorism legislation.
David Miranda is the partner of former Guardian journalist Glenn Greenwald, who first reported on Edward Snowden’s whistleblowing about the NSA’s mass surveillance programs. On 18 August 2013, he was detained at Heathrow airport while changing planes on a trip between Heathrow and Rio de Janeiro. Miranda was questioned for just under the statutory limit of nine hours, was forced to give over passwords, had personal electronic equipment confiscated and not allowed to speak to his solicitor until eight hours had passed.
The UK Government’s attempts to prevent reporting on the Snowden revelations – which include ordering the destruction of the Guardian’s hard drives – have generated sustained international criticism. The World Association of Newspaper and News Publishers launched an unprecedented mission to the UK to investigate press freedom issues just last month.
David Miranda’s lawyers Bindmans have announced that he will be appealing today’s judgment. Miranda was not given an automatic right of appeal, so it is up to the Court of Appeal itself to decide whether to grant a hearing.
Permission to appeal was eventually granted in May 2014.
Judge Richard J. Leon’s ruling of 16 December 2013 in the US district court for the District of Columbia concludes that the NSA’s bulk collection of US citizens’ phone metadata likely constitutes “an unreasonable search under the fourth amendement.” This ruling grants an injunction against the collection of the plaintiffs’ metadata, stayed pending appeal.
Less than two weeks after this ruling, Judge William Paley moved to dismiss a similar action brought by the ACLU in the district court of the Southern District of New York. Conflict in the lower courts increases the likelihood that the US Supreme Court will eventually be called upon to adjudicate the issue: see the Guardian article, NSA phone surveillance program likely unconstitutional, federal judge rules, 16 December 2013.