The BBC, Kilroy and freedom of speech

So Robert Kilroy-Silk has quit as a BBC presenter for making some controversial remarks in a newspaper article.

The BBC claims that the issue was never about freedom of speech:

Critics had accused the BBC of gagging Mr Kilroy-Silk by suspending his BBC One show, but Director of BBC Television Jana Bennett insisted the corporation's decision had not been about freedom of speech.

She said: "Presenters of this kind of programme have a responsibility to uphold the BBC's impartiality.

"This does not mean that people who express highly controversial views are not welcome on the BBC but they cannot be presenters of a news, current affairs or topical discussion programme."

So one the one hand it was never about freedom of speech, but on the other hand the BBC does not want its presenters to express controversial views even when they're not presenting a programme and are doing so representing only themselves!

It'd be one thing (and entirely right) to demand impartiality whilst presenting a news or current affairs program for the BBC. It is quite another to demand BBC presenters keep controversial views to themselves even when they're not working for the BBC.

If the BBC are serious about this policy, they must stop using MPs as presenters of Have I Got News For You lest they make controversial remarks during their political careers.

They must also prevent their presenters from presenting their own opinions on other BBC programs, such as Question Time, Any Questions or This Week.

Kilroy-Silk should not have given in, though I expect he's saved his company's work with the BBC by doing so. All that said I've long thought the Kilroy programme to be crud...

On the Proceeds of Crime Act 2002 (Part 1)

You're wrongly accused of an offence. The case goes to trial. You're acquitted. Can you now breathe a sigh of relief that the issue is dead? Not really. Aside from the recent abolishment of the prohibition on double jeopardy for some serious crimes (see the Criminal Justice Act 2003), the govt can have another go at you. Instead of trying to imprison you, they can use civil asset forfeiture to seize assets they allege are the proceeds of crime.

You don't need to have been charged or convicted of any offence. You may have been acquitted of an offence. It does not matter.

If the govt persuades a judge, on balance of probabilities (i.e. without solid proof, with a case with holes in it, so long as it casts enough suspicion on you), that you received the proceeds of crime they can seize your assets. Indeed a Scottish man has already had £24K seized despite being acquitted of a drugs offence. Note Lord Advocate Colin Boyd's comment:

"What is significant about the seizure is it demonstrates the new legislation is working and those suspected of profiting through crime are being penalised.

Note that it is those *suspected* of profiting crime who are penalised. Not those who are profiting from crime or those convicted of a criminal offence.

Admittedly in this case the man concerned did not account for £46K worth of deposits into his bank account whilst on benefits and with no other known source of income. ISTM he should have been done for benefit fraud. However he'd been acquitted of the drugs offences and was thus legally innocent, yet they seized his money by claiming it was the proceeds of crime he'd been cleared of.

"So what?" some might respond. "I can easily account for my money and would thus it would be easy to prove where I got it all from if I were unlucky enough to fall victim to this". However, effectively this means that refusal or failure to account for where your money comes from becomes grounds for losing it to the state. Moreover, whether or not your account for your money and any documentation you produce persuades the judge will depend on the hurdles presented by the state's case against you, and the state can spend far more time and money, whilst exercising legal powers that others don't have, on constructing a plausible case than just about any individual could manage.

Some might suggest that it's no different to any other civil case so why worry? The problem is that it is different. Civil law concerns the resolution of disputes between private parties with the state as the adjudicator. A private party has to bring a case, thus has to be determined and well enough resourced to do it. The balance of probabilities test in civil cases may be appropriate for determing whether a contract has been broken or whether someone should pay compensation for an injury caused in accident they were party to, and where the two parties have relatively equal standing. Furthermore the money is going to the aggrieved party if he wins the case, not to the state.

In criminal law, the state makes the laws, the state performs the investigation, the state makes the arrest, the state constructs the case and the state runs the courts. This is one reason why in criminal law various protections for individuals were made, e.g. the presumption of innocence, the requirement of proof beyond reasonable doubt of guilt, the right to silence and the use of jury trials. The counters the imbalance of power whereby the state has both more resources and more legal powers to make a case than any individual.

With civil asset forfeiture however we have the state bringing a civil case against an individual on the basis of criminal matters (of which they might have been cleared) and acting also as the adjudicator. The odds are set against anyone who has this procedure used against them and they will not have the protections of criminal law. They are unlikely to be able to spend the time and money the state does to defend themselves. I thus contend this is an abuse of civil procedures and a dangerous law.
Innocent people could find their legally held after tax assets being stripped from them, on the basis they are probably the proceeds of crime, without any offence ever being proved against them.

And it gets worse. Suppose the police are investigating someone for crime but don't believe they have a strong case to present to court. Instead of doing further investigation, they may decide it's not worth their time and effort to prove the case beyond reasonable doubt but that civil asset forfeiture might work and pass the case to the civil assets recovery agency (CARA). This would lead to criminal cases being less thoroughly investigated, thus lessening the chances of real criminals actually being caught. A thorough investigation is a crucial element of crime fighting and may prove that an initial suspect was innocent. This legislation creates an incentive to cut investigation short by seizing assets on a low burden of proof. Thus looking purely at it from a crime fighting point of view the ability of the state to use this procedure instead of proving someone committed a crime will have counter productive effects.

There is also scope for corruption. Someone could be setup in collusion with the CARA and due to the low burden of proof, and even the possibility of a pliant judge, it would be relatively easy to get their assets. Further more the state is likely to find the income stream from this very useful and thus may end up in collusion with the criminal world to keep the income stream online without taking enough to stop crime, whilst people in the criminal world might direct the state to useful targets for the money in order to keep the state of their own backs.

In short I contend that civil asset forfeiture is bad law, an abuse of civil procedures, a threat to the innocently wealthy, will be counter productive in fighting crime and introduces opportunities for laziness in crime fighting and for corruption of the state. It should be repealed.

Regarding the "Part 1" in the title, I'm afraid that civil asset forfeiture is not the only nasty item in this legislation...

Samizdata have also commented on this legislation. The comments on their article refer to experiences in America where a similar law has been around for some time.

The new year...

Well I'm back from my Xmas/New Year break, sorry for the lack of articles during this period.

So we have a new year with some interesting things shaping up. There's the report from the Hutton inquiry, Labour splits over tuition fees, the civil contingencies bill (which would allow the govt to give itself dictatorial powers in the event of an emergency), the promise of Libya to get rid of its WMDs, the US presidential elections, and much else to make this an interesting year for those who follow politics and world events.

I fully expect the govt's attacks on civil liberties to continue (e.g. the civil contingencies bill which will allow legislation by decree), but I think British politics has undergone quite a change over the last year. The Blair govt is no longer teflon coated and Blair's credibility has been damaged. However it is yet to be seen if the opposition can exploit the opportunities presented. I think for the moment that developments in the Labour party and its relationship to the govt will be more important than anything the Tories do.

Satellite tracking of cars -- "when, not if"

The BBC reports that a govt appointed committee is considering fitting a tracker to every car in order to introduce congestion charging on all roads. Professor David Begg, leading the committee, is quoted as saying:

It is now a matter of when, not if. Six months ago it was on the shelf, but Mr Darling is now very serious about it.

It seems the day when everyone is under constant surveillance 24 hours a day no matter where they are or what they're doing is getting closer. Satellite tracking of cars, plus ever increasing usage of CCTV (still largely unregulated), plus agencies from MI5 to the Charities Commission able to monitor internet and phone activities, plus govt powers to spy on bank accounts, plus an ID card system tracking our usage of govt services and quite probably our purchases or movements, gets us pretty close to that day already.

Yippeeee!

Great news! And congrats to the coalition forces. Now the Iraqis need not fear Saddam ever regaining influence, which may make it easier for the remaining Ba'athists to be hunted down and captured. In the meantime let's hope Saddam is made to answer for his crimes.

Now where's Osama got to?

Electronic voting: A threat to democracy?

With low turnouts in many elections in Britain, some people have suggested that electronic voting could be allowed in order to make things easier and hopefully raise voter turnouts, e.g. see this BBC report about e-voting trials in Swindon in recent local elections.

In America there has been a big push towards introducing electronic voting systems after the Florida vote counts in the 2000 presidential election where the voting machines' performance may have influenced the end result in a tight election.

However the move towards electronic voting is by no means straightforward. With a paper ballot, with the vote manually registered by the voter as occurs in British elections at the moment, you have a high degree of checkability. People know what they write on the ballot before it's put in the box. Vote counting can be done under the eyes of the candidates, their representatives and independent observers. We can therefore create reliable voting procedures and vote counting procedures quite easily.

With electronic voting, things are not so straightforward. Without knowing what code is running on the computer recording your vote, you cannot be sure whether the vote is correctly registered by the computer. The vote counting is done by the computer essentially out of sight. The possibility of incorrect counting due to software bugs, the software being hacked or plain skullduggery on the part of the software writers has to be taken into account.

America's recent experiences with voting machines provided by a company called Diebold provide worrying reading:

Under the Help America Vote Act (HAVA), the Election Assistance Commission is charged with establishing voluntary standards for voting machine software and creating an independent testing process for the software. However, this process is far behind schedule. Under HAVA, the Election Assistance Commission members should have been nominated by the President in February 2003. Unfortunately, these nominees have only recently been sent to the Senate for confirmation.

Without this federal review and testing of software, deeply flawed software has been marketed by companies and bought by states. An Analysis of an Electronic Voting System was recently authored by Tadayoshi Kohno, Adam Stubblefield, Aviel Rubin, and Dan Wallach. This voting software, produced by Diebold, has already been purchased by two states. According to this study, some of the most serious of numerous flaws permit a person to:

-vote multiple times,
-view ballots already cast on a machine,
-modify party affiliation on ballots,
-cause votes to be miscounted,
-create, delete and modify votes on voting machine, and
-tamper with audit logs and election results.

States Purchase Insecure Software
As a result of this study, Maryland put on hold its purchase of Diebold voting machines. Later, an independent review confirmed the previous findings. It counted 328 security weaknesses, and concluded that: "The system, as implemented in policy, procedure and technology, is at high risk of compromise" (pg. 17).

Diebold had threatened legal action against students and ISPs who publicised the flaws found in their voting machines, though they have now backed down.

A comprehensive account of both the problems with the machines and the legal actions Diebold attempted in order to try and stop various internal emails detailing flaws in the machines being distributed around the web can be found here. Diebold's response to the problems has been far from reassuring as the threatened legal action illustrates. But it gets worse, since according to the above article:

The state of Maryland, however, commissioned an investigation of the Diebold machines by SIAC. SIAC found 328 security weaknesses; of those, 26 were designated critical . Among the problems: Diebold doesn't encrypt vote totals before they are transferred to the Board of Elections over the Internet. Diebold's response is far from reassuring, as the Washington Post reported:

"Further, as a result of the review, Diebold has rewritten its software to include better encryption coding and harder-to-crack passwords. The encryption and password upgrades will be made only for the machines destined for Maryland , [Diebold executive Mark] Radke said, and would not be available for the 33,000 touch-screen machines already in use elsewhere."

So there you have it: the squeaky wheel gets the grease. Diebold will fix Maryland's machines, but everyone else in America will continue to suffer from hundreds of security holes, 26 of them critical. Feel better?

Of course, anyone that really cares about security knows that a system has to be built with security in mind from the get-go. You can't just bolt security on top of a system after the fact and assume that the any problems will be fixed. But that's exactly what Diebold proposes to do. They told us to trust them before, and now they're asking us to trust them again. How trusting are you?

The above articles paint a very worrying picture about the way electronic voting is shaping up in America and suggest other countries should be very careful and cautious about e-voting. It seems to me that the any moves towards e-voting should involve the following requirements (based on the list in the security focus article):

* the use of open source software that is open to scrutiny by anyone

* the voting machines must pass thorough testing to ensure security and reliability

* the voting machines must produce paper copies of the votes, verified as accurate by the voter, to be used for auditing purposes.

* voting machines must be usable by the disabled.

* Surprise recounts must be held in a proportion of randomly selected constituencies in each election.

* voting machines must only communicate with other systems in order to report vote totals. Incoming communication from other systems should be forbidden.

At any rate, until trials have shown that electronic systems can be used reliably without opening up scope for manipulation of the voting process, we should stick to paper ballots.

Labour issuing more gagging orders than the Tories

The Guardian reports that:

Ministers in Tony Blair's government have issued more official gagging orders than the previous Conservative government, figures show.

The rise in the controversial orders - which keep secret Whitehall documents in court cases - has occurred despite official assurances that their use would be curtailed.

Ministers signed 100 public interest immunity certificates (PIIs) in the five full years since Mr Blair came to power in 1997, compared with 70 under the previous five years of the Tory government.

The figures have been collated from lists of orders obtained during an investigation by the BBC's File on Four programme, which will be broadcast tonight on Radio 4.

Rules introduced in the wake of the arms-to-Iraq affair in the mid-1990s were supposed to reduce the volume of such orders.

While in opposition, Labour made political capital by criticising Conservative ministers for exploiting gagging orders to suppress politically embarrassing evidence. Sir Richard Scott, during his inquiry into the arms-to-Iraq affair, delivered a scathing attack on the abuse of such certificates.

So much for their commitment to freedom of information and open government.