It was not the first time Muhammad Rabbani had problems when returning to the United Kingdom from travels overseas. But on this occasion something was different — he was arrested, handcuffed, and hauled through London’s largest airport, then put into the back of a waiting police van.
Rabbani is the 36-year-old international director of Cage, a British group that was founded in 2003 to raise awareness about the plight of prisoners held at the U.S. government’s Guantánamo Bay detention site. Today, the organization has a broader focus and says it is working to highlight “the erosion of the rule of law in the context of the war on terror.” Due to its work campaigning for the legal rights of terrorism suspects, Cage has attracted controversy, and Rabbani has faced the government’s wrath.
His trouble at Heathrow Airport in late November began with a familiar routine. Often, on his return to the U.K. from foreign trips, he was stopped by police and questioned under Schedule 7 of the Terrorism Act — a sweeping power British authorities can use at the border to interrogate and search people without requiring any suspicion of wrongdoing. People questioned under Schedule 7 have no right to remain silent, and they can be interrogated for up to six hours. Rabbani estimates that he has been stopped under Schedule 7 about 20 times. Usually, he was let free after a few questions without any charges or arrest. But not this time.
Rabbani was returning to London after a business trip to one of the Gulf states. He had been meeting with an individual whom he says was previously detained by U.S. authorities and suffered “years of torture” at the hands of his American captors. The person provided Rabbani with information about his treatment, including names of particular individuals allegedly involved in carrying out the acts of torture. These details, Rabbani says, were provided on a confidential basis and were to be used by Cage as part of a pending legal action against the U.S. government.
As he arrived back at Heathrow, Rabbani was pulled aside by a police counterterrorism officer at the passport control desk. At first, the conversation was polite. But the tone changed when the officer began asking Rabbani about his work for Cage. He requested that Rabbani accompany him to a room inside the airport where he would be subjected to a formal “examination” under Schedule 7, which is supposed to be used solely to determine whether a person is directly involved in the “commission, preparation or instigation of acts of terrorism.”
In the interrogation room there were two police officers who searched all of Rabbani’s luggage and questioned him further about his travels — Whom did he meet? Where did he go? Where did he stay and for how long? After a while the conversation turned to the electronic devices Rabbani was carrying, which included a silver MacBook Air, a SIM card, a flash drive, and an iPhone. The officers asked Rabbani to turn over his passwords so that they could access the devices — and said that if he did not provide them, they would arrest him.
In August 2013, David Miranda, the partner of Intercept co-founding editor Glenn Greenwald, was detained in the same London airport and similarly interrogated under Schedule 7. Miranda had been assisting Greenwald’s reporting on documents about government surveillance leaked by National Security Agency whistleblower Edward Snowden. Last year, in a significant victory for privacy rights, a judge in the Miranda case ruled that Schedule 7 was “not subject to adequate safeguards against its arbitrary exercise.” As a result, the British government made changes to a code of practice that outlined how officers should conduct their searches. Officers are now told that they should “cease reviewing, and not copy” information which they have grounds to believe is attorney-client privileged, is journalistic material, or is another kind of information held in confidence, which a person has “acquired or created in the course of any trade, business, profession or other occupation.”
Rabbani was aware of this crucial change and felt that the police were overstepping their recently narrowed authority. “I told them the info on there [my electronic devices] was confidential and sensitive — relating to vulnerable people,” Rabbani told The Intercept. “But they ignored that. They said, ‘No, we have the power to take your devices and to compel you to give your passwords.’”
The situation reached an impasse. Rabbani told the police that he would not turn over the passwords, and he was not going to change his mind. The officers arrested and handcuffed him, then escorted him through the main concourse of the airport into the back of a police van. He was taken to a nearby police station, held in a cell for about nine hours, and later released on bail.
In May, Rabbani was formally charged with willfully obstructing or seeking to frustrate a Schedule 7 search. He is pleading not guilty and is due to face trial next week — beginning September 25 — at Westminster Magistrates Court in London. If convicted, he could face three months imprisonment and a fine. He plans to argue that the police acted unlawfully because they attempted to access confidential information related to his work. “How can a person’s privacy be invaded in this way when they are not accused or suspected of a crime?” he asks. “It is like a digital strip search.”
Particularly unusual about Rabbani’s case is that he had been stopped on many prior occasions — dating back to 2008 — and never before did police arrest him when he declined to turn over his phone or laptop passwords. He is already well known to the authorities due to his employment with Cage, and he has never been accused of involvement in any sort of terrorism plot. This year, British police have been on a higher state of alert than usual after several terrorist atrocities, including a suicide bombing in Manchester and attacks in London that left more than 30 people dead. But Rabbani’s detention took place in November 2016, several months before the latest wave of incidents in the country.
One factor may be that, amid the rise of the Islamic State, Cage has found itself under greater scrutiny than ever before. The organization has provoked ire at the highest echelons of the British government after accusing the country’s security services of harassing young Muslim men and contributing to their radicalization and embrace of Islamic State ideology. Senior government officials, including the former prime minister, have publicly condemned Cage’s position. The group’s defenders insist that it does important work advocating on behalf of marginalized Muslim communities, which since 9/11 have faced increased surveillance, suspicion, and Islamophobia.
Rabbani believes his devices may have been targeted on this particular occasion as an act of deliberate “government interference” in Cage’s work. It is possible, he said in a phone interview, that the police wanted to obtain intelligence from him — specifically, a copy of the information provided to him by his contact in the Middle East, whom he is reluctant to identify. If the person were named, there could be “implications for him and family right now where he is,” says Rabbani. “He’s vulnerable and already suffered years of torture. What he needs is safety, security, stability.”
London’s Metropolitan Police, which was responsible for searching and arresting Rabbani, declined to comment for this story. The force said it would be “inappropriate” to do so due to his impending trial.
Gareth Peirce, a leading British human rights lawyer who is representing Rabbani in his case, says a core problem with Schedule 7 is that “you are flagged up for life” once your name is on the system.
“Schedule 7 is an enormous blunderbuss that is overused and the consequence of its overuse is that it is abusive,” says Peirce. “It affects almost every Muslim in ever-increasing numbers who contemplates traveling. It is not just the sheer number of Muslims stopped but that the same people are stopped repeatedly.”
Between 2009 and 2016, British authorities carried out 400,058 “examinations” of people under Schedule 7 — an average of about 50,000 per year, or 137 every day. But few of these individuals were arrested or charged with a crime. Through the same seven year period, according to government statistics, 370 people in the U.K. faced terrorism-related charges. That’s 0.09 percent of the 400,058 Schedule 7 searches, though the true percentage is likely smaller because not all of the 370 charges will have arisen as a result of a stop at the border.
The intent of Schedule 7 is to root out terrorists, but there have been several cases in which it has been used to target activists. In November 2015, for example, police used the power to detain volunteers who were taking aid to a refugee camp in northern France. In March of the same year, a group of European peace campaigners, traveling to England to protest outside a nuclear weapons facility, were stopped and questioned under Schedule 7. In 2013, an employee of the London-based human rights group Reprieve and a researcher for the website Corporate Watch were separately interrogated under the counterterrorism power.
GCHQ Gets Copies
While the existence of Schedule 7 is widely known in the U.K., the government has kept secret some significant details about its function.
Those who are examined under the law will usually be searched and questioned by officers. Like Rabbani, they may also have cellphones or laptops they are carrying inspected or confiscated.
Unknown to people who have gone through this process, however, is that police may also have covertly downloaded the contents of their phone and sent copies to the British eavesdropping agency Government Communications Headquarters, or GCHQ.
Every month the agency was receiving a copy of phone data that had been “downloaded from people stopped at U.K. ports (i.e. sea, air and rail),” according to a classified GCHQ document obtained by The Intercept from Edward Snowden. The data was placed in a central database that GCHQ employees could search, and it included “anything stored on a target’s phone,” such as contact lists, text messages, and call records.
The GCHQ document, which has not been published before and is dated between 2009 and 2010, states that the data is considered to have been “legally volunteered” under the Terrorism Act. However, it adds that the person searched “will not be directly told their phone is downloaded.” Most of the data is derived from devices belonging to people who were stopped at the request of domestic spy agency MI5. Some is also collected from people who have been stopped by police “arbitrarily or based on profiling,” but unless “substantial traces are found against that person,” their phones’ information is deleted, according to the document.
The cellphone data collection program was code-named PHANTOM PARROT, and it was integrated as part of a larger GCHQ surveillance system called LUCKY STRIKE. As of 2012, LUCKY STRIKE contained some one billion records and more than 40 different datasets, including people’s cellphone call logs, text messages, and financial records, GCHQ documents state.
In recent years, the U.K. watchdog appointed by the government to oversee terrorism powers — known as the Independent Reviewer of Terrorism Legislation — has repeatedly raised concerns about how police handle data downloaded from people’s electronic devices during Schedule 7 border searches. In his 2013 report, Sir David Anderson cautioned that there were “no national records of downloads taken” — making it difficult to keep tabs on the extent of the practice. “It is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable,” Anderson wrote. He called for the introduction of “sufficient safeguards and sufficient guidance to ensure that it [downloading people’s data during searches] is practiced only when this is necessary in a democratic society.”
Anderson continued to raise the issue in his subsequent annual reports, referring to it as “unfinished business.” In 2014, he pointed out that, anywhere else in the country, “a warrant would be required for such inspections,” and said there was a “need for clear and proportionate rules governing the data taken from electronic devices” at airports and other re-entry points.
In December 2016, Anderson established that in the prior year, police had downloaded data during border searches from 4,300 devices owned by 1,677 people — affecting an average of about 32 travelers each week. He again reiterated his call for safeguards to be introduced, saying that he believed the authorities should need to have a particular suspicion about a person if they want to copy their data. He proposed this idea to the government, he noted, but the Secretary of State “declined to apply” his recommendation.
Asked by The Intercept whether he was aware that police were often sending the data to a central repository controlled by GCHQ, Anderson — who stepped down from his watchdog post in March — declined to comment.
Shamik Dutta, a London-based human rights lawyer who specializes in breach of privacy cases, questioned the legality of the GCHQ program.
“To be in accordance with the law there need to be, amongst other things, clear and accessible rules on the authorities’ use of the power,” Dutta told The Intercept after the program was described to him. “And I am not aware of any clear and accessible rules that govern this.”
GCHQ’s collection and storage of the phone data, Dutta added, could violate Article 8 of the U.K.’s Human Rights Act, which states that “everyone has the right to respect for his private and family life, his home and his correspondence.”
“Somebody’s smart phone can provide insight into their personality, their political affiliation, their beliefs, their sexuality, and medical conditions,” says Dutta. “It is undeniable that to copy its contents and retain those contents indefinitely amounts to a significant interference with its owner’s private life. It is difficult to see how such interference could be justified where that information is seized from individuals who are not suspected of any offense.”
Eric King, a surveillance expert and visiting lecturer at London’s Queen Mary University, echoed some of Dutta’s comments. He reviewed the documents for The Intercept and stated that the GCHQ program appeared to lack sufficient oversight.
“Cloning thousands of individuals’ devices is a deeply intrusive act,” King said. “That it can be done in the absence of suspicion of wrongdoing is problematic in itself, but the fact that the copied data is being harvested, fused with other data sources, and retained without an iota of transparency or notice raises real concerns.”
GCHQ declined to answer any questions for this story. The agency instead issued a boilerplate statement asserting that its work “is carried out in accordance with a strict legal and policy framework, which ensures that our activities are authorised, necessary, and proportionate.”
A spokesperson for the Home Office, the U.K. government department responsible for Schedule 7 policies, said he would “not comment on intelligence matters.”
Schedule 7 Surveillance
Rabbani already believed the police were using Schedule 7 as a tool to sweep up information held on people’s electronic devices; when told about the existence of the PHANTOM PARROT program, he said it confirmed some of his suspicions.
“The real truth behind Schedule 7 is that it is a surveillance tool,” he says. “The power is there to give the authorities the ability to collect data on thousands of people.”
Rabbani will have a chance to address some of his criticisms of the law during his upcoming trial, for which he and his legal team have been busy preparing. He is confident that he has a strong case, but he remains uncertain as to whether or not he will prevail when he gets his day in court.
“If I were a John Smith — a white, middle-aged, liberal man — I think my chances of accessing justice would be much higher,” he says. “The prevailing environment is one of suspicion of Muslims and I am the wrong profile. I have the wrong skin color, the wrong facial hair, and I work for an organization that politically from the perspective of the state is a bit of a pain for them.”
“If the law finds me guilty then it’s something I can’t do anything about,” he says. “But at least then I will have done my duty of care to my clients and secondly I will have done my duty to society in drawing attention to the fact that powers like this exist. And that is it. I will have to bear the consequences.”