Las Normas Jurídicas Internacionales.

Since the introduction of the various bulk powers and decryption under the IPA, it is highly likely that legislative pre-emptive measures introduced will increase in use. In attempting to manage the potential terrorist threats posed, the retention of electronic communications data for a period of 12 months and the bulk powers allowing such data to be screened by an algorithm, have proved essential in finding potential needles within the continually growing haystacks. As

technology grows and the algorithms become more effective, the use of current pre-emptive measures will prove essential in the prevention of terrorist attacks. However, allowing such abilities to the state have resulted in academic debates surrounding mass surveillance, risk society, predictive policing and so called ‘pre- crime’ measures.

Mass Data Surveillance

According to Ratcliffe et al, in terms of CCTV camera use and its effects on crime reduction in the UK, citizens’ are subjected to mass surveillance.579 However, in terms of electronic communications data and ICR records that are retained for 12 months, and from the legal definition of surveillance under RIPA,

579 _{J. Ratcliffe, T. Taniguchi and R. B. Taylor (2009) The Crime Reduction Effects of Public CCTV Cameras: A} Multi-Method Spatial Approach, Justice Quarterly, 26:4

retention does not equate to mass surveillance. It would simply be impossible for UK law enforcement agencies’ to actively conduct surveillance on the entire data pool. The algorithmic screening of the electronic communications data stored means that the majority of UK citizens’ data would not come under the remit.580

Risk Society: The resulting increase in state powers

Collecting and storing vast amounts of data adds to the critical debate on the balancing of collective security with individual privacy, and essentially to the managing of risk. For Beck, the term ‘risk’ is a modern concept that:

‘…inherently contains the concept of control…presumes decision making [and involves] talking about calculating the incalculable’.581

According to Beck’s conceptualisation in 2002, he suggests citizens’ might increasingly become a paranoid ‘risk society’ as the international terror threat grows.582 By linking prediction and risk, whereby fear of a potential terrorist attack leads to an increase in state law enforcements’ capabilities, the result has arguably led to the development of computer algorithms to screen the vast amounts of data stored, in order to search out the needles in the haystacks autonomously and quickly.583 _{According to Furedi’s analysis, ‘fear plays a key}

role in twenty-first century consciousness’, which has inevitably led to citizens’

580 _{I. Brown and D. Korff (2014) Foreign Surveillance: Law and Practice in a Global Digital Environment, European}

Human Rights Law Review, 3:243-251. See also A. S. Reid and N. Ryder (2010) For Whose Eyes Only? A Critique

of the United Kingdom’s Regulation of Investigatory Powers Act 2000, Information and Communications Technology

Law, 10:2, 179-201

581 _{U. Beck (2002) The Terrorist Threat: World Risk Society Revisited, Theory, Culture and Society, 19:4, 39-55, 40} 582 _Ibid

583 _{Ibid. See also I. Kerr and J. Earle (2013) Prediction, Preemption, Presumption: How Big Data Threatens Big} Picture Privacy, Stanford Law Review Online, available at https://www.stanfordlawreview.org/online/privacy-and- big-data-prediction-preemption-presumption/

acceptance of increased state monitoring and thereby, for Garland at least, control.584 It is worth noting here that as citizens’ increasingly accept state monitoring of stored data due to the risk society theory, conjoined with technological advancements, the automated computer algorithms used may become progressively effective at screening the vast amounts of data for potential terrorists. Leading of course to intelligence-led policing evolving into a type of predictive-led policing.

Predictive Policing and Pre-Emptive Measures: Pre-crime

Whilst the term predictive policing remains simply within the understanding of intelligence-led policing, it has nevertheless resulted in critics suggesting the UK is moving towards a ‘pre-crime’ scenario.585 However, law enforcement cannot simply conduct surveillance or make an arrest without authorised legal powers, and a specific identifiable criminal offence being committed. As such, the term ‘pre-crime’ does not exist in legal terms. In fact it is simply a fabricated term used by Hollywood in the movie ‘Minority Reports’. As discussed further below, collecting or disseminating terrorist related data through the Internet is a criminal offence.586 The same can be said for encouraging another to commit an act of terrorism. These are not pre-crime measures, but pre-emptive criminal offences,

584 _{F. Furedi (2007) The only thing we have to fear is the ‘culture of fear’ itself: How human thought and action are} being stifled by a regime of uncertainty, available at http://frankfuredi.com/pdf/fearessay-20070404.pdf. See also D. Garland (2001) The Culture of Control: Crime and social Order in Contemporary Society (Oxford University Press) 585 _{J. Richards (2016) Needles in Haystacks: Law, Capability, Ethics, and Proportionality in Big Data Intelligence-Gathering, in A.} Bunnik, A. Cawley, M. Mulqueen and A. Zwitter, Big Data Challenges (Palgrave Macmillan) p74. See also L. Zedner (2007) Pre-crime and post-criminology? Theoretical Criminology, 11:2

aimed at preventing the would-be-terrorist from committing the physical act. They are a crime.

Following Beck’s conceptualisation above, pre-emptive measures are littered throughout the UK’s legal counterterrorism structure, simply because of the extraordinary terror threat.587 _{As with the IPA, RIPA and the CTSA, there has}

been a growing tendency and common theme to address anticipatory risk.588 For Walker, these measures have habitually been reactive to the politics of the last atrocity.589 In response, the UK has enacted certain provisions aimed at criminalising the collection of terrorist material for terrorist purposes, and, at criminalising the encouragement and dissemination of terrorist publications. Again for Walker, the process of the radicalisation of young Muslim men became a primary focus following the terrorist attack on London on the 7th July 2005. In response to the gamut ferociousness and the devastating nature of recent terrorist acts, early State intervention is essential, before rather than after the attack.590

587 _{Supra as per U. Beck (2002)}

588 _{C. Walker (2008) Terrorism: Terrorism Act 2000 s.57-direction to jury on defense of possession of items for} defensive purposes, Case Comment, Criminal Law Review 72-80, 74

589 _Ibid

590 _{For attack ion Turkey see http://edition.cnn.com/2016/03/13/world/ankara-park-blast/. For Ivory Coast} attack see http://www.nytimes.com/2016/03/14/world/africa/gunmen-carry-out-fatal-attacks-at-resorts-in- ivory-coast.html?_r=0. For Northern Ireland terror attack see

http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/, and

http://www.bbc.co.uk/news/northern_ireland. For Paris attack 2016 see: http://www.bbc.co.uk/news/world- europe-34818994 accessed 15 March 2016

STATUTORY PREVENTATIVE MEASURES: POSSESSION OF