None of the laws Samata Ullah was charged under (especially Section 57 Terrorism Act 2000 and Section 5 Terrorism Act 2006) mention encryption, privacy software, blogs or the specific items he was found with. So why was this relevant?
Reading each charge against Ullah, you’ll notice there are two important elements to each one: a) Intention and b) Action. In each, Ullah was charged either because:
1. Intent made the action an offence
2. An action implied intent
Most the outcry was actually related to the third charge (under Section 5 Terrorism Act 2006), which is worth quoting in full:
‘Count 3: Preparation for terrorism. Between 31 December 2015 and 22 September 2016 Samata Ullah, with the intention of assisting another or others to commit acts of terrorism, engaged in conduct in preparation for giving effect to his intention namely, by researching an encryption programme, developing an encrypted version of his blog site and publishing the instructions around the use of programme on his blog site. Contrary to section 5 Terrorism Act 2006.’
A reading of that part of the Terrorism Act reveals the following:
‘A person commits an offence if, with the intention of—
(a)committing acts of terrorism, or
(b)assisting another to commit such acts,
he engages in any conduct in preparation for giving effect to his intention.’
The important words here are ‘intention’ and ‘any conduct’. Samata Ullah wasn’t arrested simply for researching privacy technologies, posting them on a blog and teaching others how to use encryption – all these are perfectly legal. What he was actually charged with was having the intention and for ‘giving effect to his intention’.
Intent and Action
To give a common real-world example of this, we might a) disagree with mass surveillance, and b) use encryption and anti-forensic tools. Since neither of those things is (yet) a crime, no offence is committed.
I could take this a step further and say that, quite legally, one might a) take an academic interest in malicious hacking, and b) research and develop malicious hacking tools. Again, since neither is a crime in isolation, no crime is committed by doing both the above – having an interest in malicious hacking wouldn’t imply the researching of it is criminal. If a was substituted with ‘intention to maliciously hack something’, then b would become an offence.
What’s different between that and Ullah’s case is a) Ullah intended to actively aid a terrorist group, and b) Ullah researched an encryption programme, developed an encrypted version of his blog site and publishing the instructions around the use of programme on his blog site. The police argue that a that made b an offence by implication.
It follows that if Ullah had a history of being a privacy activist or an academic interest in this area before he became involved with terrorism, it would have been much harder to make an unambiguous connection between his intent and his actions. If there was no prior interest in encryption and privacy before getting involved with a terrorist group, it’s reasonable to assume there could have been no other context in which he was researching and teaching encryption.
Actions that Imply Intent
The one charge that would potentially have implications for freedom of expression is actually the sixth one:
‘Count 6: On or before 22 September 2016 Samata Ullah had in his possession articles namely a book about guided missiles and a PDF version of a book about advanced in missile guidance and control for a purpose connected with the commission, preparation or instigation of terrorism, contrary to section 57 Terrorism Act 2000.’
The reasoning here is based on the idea that posession of certain items could imply an intent to commit an offence. This is tricky, because not only is it more subjective, the defendent would have to demonstrate s/he didn’t have the intent.
A more common example of this would be the gray area around martial arts and weaponry. It’s perfectly legal to carry weapons, adequately secured, to and from my place of training. If I carried the same weapons around on a night when I’m not training, that would imply criminal intent as there’d be no legitimate reason for having them. The same applies when carrying anything that could only reasonably be used as a weapon.
This is the reasoning applied in Section 57 of the Terrorism Act 2000:
‘A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.’
But in this case Ullah was charged because he possessed literature, not weaponry, which raises the question of whether someone should ever be busted for reading the wrong literature or having the wrong books. This is what I’m a little more worried about.