Late last year, the UK’s Secretary of State for the Home Department—who, as a Member of Parliament, has the power to propose legislation—introduced a draft anti-terrorism bill that would erode civil liberties on a number of fronts. The legislation, known as the Counter-Terrorism and Security (“CTS”) Bill, is still making its way through Parliament, and CDT sent a letter to key committees yesterday that highlights certain extremely important provisions that we believe have not been adequately scrutinized. These provisions concern the UK’s anti-radicalization program, which we believe is inconsistent with a number of fundamental human rights such as free expression and the right to privacy.
The “Channel” program and anti-radicalization
The CTS Bill has been receiving a great deal of media attention in Britain, not least because it would effectively empower the Home Office to order universities to ban certain speakers. As CDT has previously pointed out in other comments to Parliament, the bill would also create a highly problematic “IP-matching” program intended to enable the Home Office to trace any online communication to an individual user.
One of the most intrusive aspects of the legislation, however, is also one that has largely escaped scrutiny. Part 5 of the bill would codify a government anti-radicalization program known as “Channel” and make it mandatory for police and local governments to participate. While recognizing the risk that extremists of many varieties may pose to public safety, CDT is deeply concerned that the Channel program—and the codification of that program in the new CTS Bill—raises a serious risk of violations of a number of rights found in the European Convention on Human Rights (“ECHR”). These rights include, among others, the rights to privacy, freedom of expression, freedom of thought and opinion, and freedom from discrimination. We are particularly concerned that these provisions of the bill will have a chilling effect on ordinary citizens’ willingness to communicate and express their ideas, political opinions, and religious views via the Internet.
The Home Office originally created the Channel program in 2007 as part of a broader anti-terrorism strategy known as “Prevent.” Prevent and Channel are far from the only government anti-extremism programs that have been adopted in recent years: the Netherlands has been progressively developing such initiatives, as have the United States, Canada, and Denmark’s second-largest city, among others. In human-rights terms, many of these programs are problematic for a variety of reasons, including their connections to intelligence agencies (as revealed, for example, in this leaked US diplomatic cable concerning efforts in Amsterdam). Several aspects of the Channel program, however, are especially alarming, particularly its disregard for privacy and seeming indifference to the freedoms of thought and expression.
Officially, the Prevent campaign (of which Channel is a part) is aimed at all forms of terrorism that could pose a threat to the British public, including violence perpetrated by the far right. In practice, however, the available data suggest that Prevent and Channel have focused overwhelmingly on British Muslims. As the scholar Arun Kundnani has pointed out, the programs rest on a set of assumptions that render all Muslims in the UK inherently suspect: they treat Muslim communities as pools from which “extremists” may spring, and regard the “extremists” as a subset of Muslims—the far end of a continuum.
Based on this notion, Channel entails encouraging local governments, schools, health professionals, and charity workers to observe individuals’ behavior and stage a formal intervention when someone displays what are thought to be indicators of “radicalization.” Once a person has been identified in this manner as “vulnerable to radicalization,” it then becomes the job of local government panels to attempt to push him or her away from what the authorities perceive as the far end of the ideological spectrum and back towards the middle.
The authorities do this by developing “support” plans, which—under the CTS Bill—would require the consent of the individual involved; even in the absence of consent, however, the authorities can keep the case under continual review. Surprisingly little information is available about the type of “support” that local governments ultimately provide in these cases, although Kundnani’s recent book suggests that among other things, individuals may be discouraged from attending peaceful political protests and subjected to state-sponsored religious instruction. As of March 2014, nearly 4,000 people, including more than 1,400 minors, had been made the subjects of referrals under this scheme.
Although the Home Office has not created an exhaustive list of what it regards as “indicators” of radicalization, the current official guidance is worrisomely vague and encompasses a number of entirely nonviolent forms of personal expression. Pursuant to one of the major guidance documents, an individual could be scrutinized for “vulnerability” simply because he or she demonstrated such common and non-violent characteristics as “a need for identity, meaning and belonging,” “desire for excitement and adventure,” “desire for political or moral change,” “feelings of grievance and injustice” or “being at a transitional time of life.” Some of the factors listed in other current or previous guidance include “style of dress or personal appearance,” “communications with others that suggest identification with a group/cause/ideology,” “expressed opinions” and the possession of certain “violent extremist literature” or “imagery.”
In other words, the Channel program does not generally involve looking for evidence of a crime. Instead, to a very significant extent, it involves searching for indications of what people think, as reflected in the things they say, read, and watch.
In other words, the Channel program does not generally involve looking for evidence of a crime. Instead, to a very significant extent, it involves searching for indications of what people think, as reflected in the things they say, read, and watch (including online); the way they dress; and the people with whom they converse. The Counter-Terrorism and Security Bill, if adopted, will make it mandatory for local governments throughout England and Wales to engage in this sort of scrutiny of community members’ beliefs and opinions.
In this context, it is worth bearing in mind that under the UK’s main surveillance legislation, the police already have broad powers to engage in the warrantless surveillance of an individual’s communications metadata. This means that police not only can trawl through public Internet activity—on Facebook, Twitter, Tumblr, or Pinterest, for example—as part of their search for indicators of radicalization, but can also keep tabs on many aspects of an individual’s private correspondence without any judicial authorization. As our colleagues at Liberty have highlighted, Prevent and Channel have already reportedly been used as an excuse for conducting covert surveillance.
Why Channel and the draft legislation are not consistent with human rights
The Channel program is open to criticism on a number of grounds, not the least of which is that the assumptions on which it rests—for example, that there is necessarily a link between “extreme” religious views and violent propensities, and that violent extremists can be identified by monitoring things like speech and dress—are problematic at best. CDT’s specific concerns, however, center on the UK’s apparent failure to respect several of the rights found in the ECHR when designing and implementing the program. These rights include, among others:
- The right to respect for private and family life, home, and correspondence. Under Article 8 of the Convention, any interference with this right must be “in accordance with the law” and “necessary in a democratic society.” We believe the vague, expansive, and profoundly intrusive powers granted to police and local governments under the Channel program (and incorporated into the draft CTS Bill) do not comply with these requirements.
- Freedom of expression, which, under Article 10 of the Convention, includes the right to “receive and impart information and ideas without interference by public authority.” The government may only restrict this right insofar as the restriction is “prescribed by law” and “necessary in a democratic society.” Otherwise, individuals remain fully empowered to express ideas or views—including those that may shock or offend others. In our view, Channel (and the provisions of the CTS Bill that would codify it) create a serious risk of inhibiting Britons’ expression of political opinions or religious views that are unpopular.
- Freedom of thought and opinion. One of the most disturbing aspects of the draft CTS Bill is that individuals can be identified as persons of concern (and experience the resulting scrutiny and potential stigma) not only on the basis of beliefs or ideas that they actually express, but also on the mere suspicion that they hold certain opinions or think certain thoughts. We believe this contravenes the freedom to hold opinions (Article 10 of the European Convention) as well as the freedom of thought (Article 9).
- Freedom from discrimination in the enjoyment of these human rights. Article 14 of the Convention prohibits discrimination in the upholding of the above rights on any basis such as race, colour, religion, opinion, language or national origin. We are deeply concerned that the Channel program and its successors under the CTS Bill may target Muslim communities disproportionately in a manner that violates this provision.
For these reasons, CDT believes that the provisions of the CTS Bill that would codify Channel—and, potentially, similar programs that are beginning to appear in places such as the Netherlands—are not only flawed policy, but also bad law. We have urged the UK Parliament to take a hard look at these aspects of the bill and redraft them to ensure that the fundamental human rights of all individuals in the UK are fully respected, and will continue to work to advance free expression and other rights in this context.