[HN Gopher] European Court of Human Rights bans weakening of sec...
___________________________________________________________________
European Court of Human Rights bans weakening of secure end-to-end
encryption
Author : robtherobber
Score : 1318 points
Date : 2024-02-14 13:44 UTC (9 hours ago)
(HTM) web link (www.eureporter.co)
(TXT) w3m dump (www.eureporter.co)
| eastbound wrote:
| Is there an exception for emergency purposes?
| mratsim wrote:
| When there is an emergency to break into a house, the police
| needs to get a mandate from a judge.
| gjsman-1000 wrote:
| Well, there is actually an exception to that too - the Police
| can break into any home, without a warrant, in the US, if
| they can prove they had reasonable cause to believe that
| there was imminent and immediate threat of bodily harm or
| death.
|
| If you are a police officer and see a guy clearly pointing a
| gun at someone else through the window, yes, you can break in
| if the circumstances warrant that.
| 05 wrote:
| Or if you receive an anonymous call from a swatter..
| JoshTriplett wrote:
| The flip side of that is that if the police enter on that
| basis, any evidence they come across in the course of that
| action is going to be tainted and potentially thrown out of
| court, especially if that evidence wasn't in plain sight.
| asmor wrote:
| No, they don't. Many countries have the concept of "imminent
| danger", which allows police to skip the warrants. It's
| called "Gefahr im Verzug" in Germany, for instance.
| rtkwe wrote:
| Depends on where you are. In the US there's the Exigent
| Circumstances exception to the warrant requirement. Not sure
| if the same theory has been included in EU countries but I
| would be surprised if it hadn't, a quick search didn't turn
| up much english language about it.
|
| https://www.ce9.uscourts.gov/jury-instructions/node/155
| vdaea wrote:
| That's not true at least in Spain. There's "In flagrante
| delicto" which means if the police suspects something going
| on they can kick your door down.
|
| It was used many times during the pandemic: when they
| suspected you were having too many people over at home, they
| acted. Unconstitutionally, mind you.
|
| The EU is not the utopia many think it is.
| martimarkov wrote:
| You'd need to define "unconstitutionally" as it seems if
| they have the right then it is constitutional
| vdaea wrote:
| The constitutional court of Spain ruled the state of
| alarm (a kind of state of emergency) that was used to
| prohibit gatherings during the pandemic was
| unconstitutional. But by then the damage was made of
| course.
| denton-scratch wrote:
| The constitutional court of Spain is an ultra-rightwing
| joke. Imprisoning Catalan nationalist politicians for
| calling for independence brought that court into
| disrepute.
|
| I'm not keen on written constitutions, or constitutional
| courts < _cough_ US Supremes >.
| vdaea wrote:
| Errr, that's not exactly what they did, as well as you
| know :-)
|
| In any case I hope we can agree that it's good that they
| said that restricting our constitutional right to free
| movement was illegal, even if it had no consequences for
| those who violated our basic rights so blatantly.
| denton-scratch wrote:
| If I'm wrong about the constitutional court sentencing
| Catalan nationalist politicians to prison, that's not
| something I know; feel free to correct me.
|
| I don't know what that has to do with free movement, nor
| how that's related to the imprisoned politicians.
|
| FWIW, I don't accept the notion of "human rights" - there
| are in reality only those privileges that are actually
| granted. I would like it if there were some kind of
| universally-accepted set of rights; but only if they are
| congruent with my own views about what "rights" should
| look like.
| vdaea wrote:
| They did more than just "calling for independence". Use
| your search engine of choice to find out what they did.
|
| And this was not a case of a violation of "human rights",
| in which I also do not believe. During the pandemic,
| there was a flagrant violation of our constitutional
| rights, among them, the right to free movement (which
| very roughly means, as a Spanish citizen, I can go
| anywhere in Spain, whenever I want) and free assembly.
| The constitutional court makes sure that the constitution
| has teeth, or so they should.
| hkt wrote:
| People think the EU is a utopia? I just think it is the
| best of a bad bunch
| nottorp wrote:
| If it's done right, it can't be subverted in case of
| "emergency" can it?
|
| If it's full of bugs, it simply doesn't matter.
| AJ007 wrote:
| The "e2e" concept that most are familiar with is basically
| fake: the provider is responsible for the client that does
| the encryption and decryption. Of course they can break it if
| forced. Software exploits are a separate matter and also
| easier to deal with when the end user isn't truly in control
| of the encryption (or easier if they don't know what they are
| doing.)
| gjsman-1000 wrote:
| If the client is properly developed and secured, they
| cannot break it without shipping an update to that client
| to change its behavior - which then affects everyone.
| guappa wrote:
| I'm quite sure they can use the app store to push a
| targeted update just to some.
| px43 wrote:
| Yes, an operating system that uses a compromised software
| supply chain is at risk of compromise, but that really
| has nothing to do with e2ee.
| hot_gril wrote:
| No need, push an update to all that only affects certain
| users. But if anyone ever de-obfuscates that, your
| reputation is gone.
| hot_gril wrote:
| It's more fake because you download the app, look up your
| friend's number "1-555-333-2222", and your client trusts
| their server to actually return your friend instead of a
| MITM. Some asterisks there, but basically it's far from
| trustless.
| priprimer wrote:
| there's only and opposing secret court mandating the opposite:
| publicly available encryption must be weakened on release
| Quanttek wrote:
| I think that depends on what you mean: a general state of
| emergency or a specific situation where the police deem there
| to be an emergency (e.g. classic hidden bomb scenario)
|
| Regarding (2), the Court found that a statutory obligation to
| decrypt E2E-encrypted data upon (judicial) request to be
| disproportionate, but it could still be imagined that - if more
| narrowly construed - a law could be considered to be
| proportionate. But the Court does seem quite unwilling to
| entertain the idea of backdoors for E2E encryption.
|
| Regarding (1), the European Convention on Human Rights (ECHR)
| allows so-called derogations from certain rights in "time of
| war or other public emergency threatening the life of the
| nation" (Art 15 ECHR), insofar as they are necessary and the
| state of emergency has been properly declared. The right to
| privacy is such a right, so a State that faces an insurgency
| may declare a state of emergency and, as part of its emergency
| measures, could probably demand the decryption of E2E
| communications if it's necessary to fight the insurgency (e.g.
| it's a guerilla group using an E2E messenger) - but hard to
| judge in the abstract.
| layer8 wrote:
| Exceptional circumstances can warrant exceptional measures, but
| also require exceptional justification, for example by means of
| a juridical decision for the individual case (i.e., a judge
| issuing a warrant allowing the police to install and use a
| backdoor on a concrete individual).
| eastbound wrote:
| Let's just remind that "exceptional justifications" in Canada
| were "Truckers are protesting with honks in the middle of
| cities", so not exactly a matter of national security and in
| the USA, NSA took it to mean "Any US or non-US citizen on US
| or non-US soil" (for national security letters).
| steelframe wrote:
| > Is there an exception for emergency purposes?
|
| The problem is when the "emergency" is "the citizen may be
| engaged in political activities that are against the interests
| of the ruling party."
| meindnoch wrote:
| Yes, in case of an emergency you can ask God to give you the
| prime factorization of 4096bit numbers.
| Macha wrote:
| Honestly, after so many things turning into "they'll just come
| back and try again in two years", it's a little reassuring to see
| some longer term roadblocks being put in place against these
| anti-E2EE proposals.
| p0w3n3d wrote:
| yeah, preferably through the Agricultural and Fisheries
| Commission or a similar body
| Aachen wrote:
| I am a bit confused. The article seems fairly political, quoting
| some promotional text by the pirate party and not describing what
| case was brought in front of a judge and what the ruling bans
| specifically, so I clicked through to the actual court case
| linked at the bottom.
|
| It has nothing to do with the pirate party or chatcontrol or any
| such thing. The court case was one person against the Russian
| government for fining Telegram when they didn't hand over plain
| text chat messages, if I'm skimming the initial facts section
| correctly. The whole article doesn't even contain the word
| russia. What is the article reporting on and why does it portray
| it as being related to the recent chatcontrol legislation?!
|
| Edit: found the decision
|
| > 80. The Court concludes from the foregoing that the contested
| legislation providing for the retention of all Internet
| communications of all users, the security services' direct access
| to the data stored without adequate safeguards against abuse and
| the requirement to decrypt encrypted communications, as applied
| to end-to-end encrypted communications, cannot be regarded as
| necessary in a democratic society.
|
| > 81. There has accordingly been a violation of Article 8
| [privacy] of the Convention [of human rights]
|
| Sounds like you can indeed extend that to any other encryption-
| circumventing law, like chatcontrol, but without considering the
| specific circumstances that were present in this Russian law, I'm
| not sure that it will be accurate. Note, for example, the wording
| in paragraph 80 "without adequate safeguards against abuse".
| Maybe chatcontrol had those, if that had been brought in front of
| the same judges
| tokai wrote:
| Its a judgement that will provide precedence. A Pirate Party
| member of the European Parliament comments because its a core
| issue to the party. Why would there be anything about the
| Pirate Party in the ruling?
| Aachen wrote:
| Why would you include "We Pirates will now fight even harder
| for our digital privacy of correspondence!" (and then
| continuing to link their website as a source of truth on the
| matter) in a non-promotional piece? This is an advertisement,
| not a news article
|
| One which I agree with, to be clear. I'm not opposed to the
| pirate party's views on digital matters. This party's
| goals/narrative just has no place in a piece about a court
| case
| tokai wrote:
| I'm not arguing that with you. You misunderstood what was
| going on here, edited your comments many times, and now you
| want to discuss the article linked instead of the actual
| news (the judgement). Calm down.
| Aachen wrote:
| I edited in more info as I found it, trying to be helpful
| for what's currently the top comment. Sorry if that's not
| okay
| chefandy wrote:
| There's a disclaimer at the bottom of the article that says
| they publish articles from a variety of sources, and that
| the viewpoints expressed aren't necessarily their own, etc.
| Considering that it does seem to have an angle, the byline
| says it's from their own unnamed correspondent, it's not
| called an opinion piece, and there's no link to the
| original, I'm guessing their slightly unpredictable
| correspondent's surname is GPT.
| rmbyrro wrote:
| C'mon, let's let people write pationately about issues they
| hold in their hearts.
|
| I can totally understand why they're so passionate about
| this topic in particular. We don't have much left of
| democracy in the world. If electronic privacy is destroyed
| like some EU leaders want, there will be close to nothing
| left.
| krastanov wrote:
| I thought precedents only matter in the US "common law"
| framework, but most of the EU is following the "civil law"
| framework where precedents do not matter. Does this precedent
| really matter?
| tokai wrote:
| Precedence is still a thing. Just less mechanically than in
| the US.
|
| This might be interesting: https://opensiuc.lib.siu.edu/cgi
| /viewcontent.cgi?article=101...
| cycomanic wrote:
| While precedence is not the same thing in civil law as in
| common law, this is essentially a ruling by the highest
| European court on the interpretation of a law and its
| conflict with human rights. These rulings are typically on
| the matter of principle, so it does effectively "bind"
| lower courts and because of this the court is very unlikely
| to take on another case on the same "conflict" (at least
| before the law has been changed).
| sofixa wrote:
| It's funny seeing "common law" referred as a US thing when
| it's literally been in use in the UK for centuries before
| the US was a thing, and that's where the US inherited it
| from.
|
| And precedent has it's place in civil law countries too,
| mostly around _clarifying_ existing legislation in case of
| ambiguity, but it isn 't an automatic ironclad thing.
| SllX wrote:
| It's a Council of Europe institution (note, not EU), so
| really there's no common legal philosophy, just the
| relevant treaties and conventions.
|
| The European Court of Human Rights' whole raison d'etre is
| the European Convention on Human Rights, so it interprets
| laws through the lens of whether they conform to that, and
| does have its own case law, albeit a short history of it.
| vaylian wrote:
| The article is not the original. The original text can be found
| here: https://www.patrick-breyer.de/en/european-court-of-human-
| rig...
| gjsman-1000 wrote:
| Reminder that the European Court of Human Rights, although very
| powerful and influential, does not have the authority to force
| anyone to abide by their rulings.
|
| Also, here's a better article:
| https://fortune.com/2024/02/13/end-to-end-encryption-russia-...
| sampo wrote:
| Also, despite its name and despite its location in Strasbourg,
| European Court of Human Rights is not an EU institution.
|
| https://en.wikipedia.org/wiki/European_Court_of_Human_Rights...
| Quanttek wrote:
| Slightly misleading: The Court's judgments are legally binding
| upon the State members of the Council of Europe. However, it is
| true that there is no armed enforcement mechanism - something
| that most domestic courts lack too - and instead decisions are
| enforced and monitored by the Council of Ministers (the
| equivalent of the UN General Assembly). However, most of its
| decisions are complied with most of the time by most nations
| (safe for Russia and Turkey), frequently because domestic
| courts will abide by the Court's rulings to overturn laws
| through its own decisions.
| hkt wrote:
| Not so. The UK, for instance, appears to treat these rulings as
| binding. This is why the UK conservatives want to scrap the
| Human Rights Act and replace it with a supposedly identical
| Bill of Rights, the key difference being a presumption that the
| UK's supreme court would cease to defer to the convention
| court.
|
| A couple of examples relating to this that come to mind:
|
| * Deporting refugees to Rwanda was stopped by an injunction
| from the ECHR * Depriving prisoners of votes was ruled illegal
| in 2005 or so
|
| There are a few others but these two come to mind.
|
| My understanding is that although the treaties (plural?) of the
| CoE and ECHR don't assume judgements are binding, a number of
| countries made them binding in their legal systems via domestic
| legal instruments.
| shaoonb wrote:
| I believe both your examples are ones where the UK did not
| follow the decision of the ECHR.
| blackshaw wrote:
| The Rwanda ECHR injunction was followed, which is one
| reason why no migrants have yet been sent to Rwanda despite
| nearly two years of harsh rhetoric.
| Georgelemental wrote:
| For example, Azerbaijan (a brutal and militarily aggressive
| dictatorship) is a member
| HenryBemis wrote:
| The article is semi-garbage (politics aside it is a badly
| written/biased article).
|
| Better read the decision.
|
| https://hudoc.echr.coe.int/eng/#{%22itemid%22:[%22001-230854...}
|
| CASE OF PODCHASOV v. RUSSIA
|
| (Application no. 33696/19)
| roenxi wrote:
| In defence of the article - it linked the decision. That means
| it is automatically in something close to the top 20% of
| articles about political topics.
|
| And the actual decision is quite readable; on a quick skim it
| seemed to agree with what the article said.
| dns_snek wrote:
| HN markup seems to be breaking the link, here's an alternative
| one: https://hudoc.echr.coe.int/eng/?i=001-230854
| ryukoposting wrote:
| Relevant English text from the Court's press release:
|
| > The applicant, Anton Valeryevich Podchasov, is a Russian
| national who was born in 1981 and lives in Barnaul (Russia).
|
| > Mr Podchasov was a user of Telegram, a messaging application
| which was listed as an "Internet communications organiser"
| (organizator rasprostraneniia informatsii v seti Internet) by
| the Russian State. It was therefore obliged by law to store all
| communications data for a duration of one year and the contents
| of all communications for a duration of six months and to
| submit those data to law-enforcement authorities or security
| services in circumstances specified by law, together with
| information necessary to decrypt electronic messages if they
| were encrypted.
|
| > Relying on Article 8 (right to respect for correspondence)
| and Article 13 (right to an effective remedy) of the
| Convention, Mr Podchasov complains of the legal requirements to
| store, pass on and decrypt data, and that he did not have an
| effective remedy for this complaint.
|
| > Violation of Article 8
|
| > Just satisfaction: The finding of a violation constitutes in
| itself sufficient just satisfaction for any non-pecuniary
| damage sustained by the applicant
|
| Source: (this is broken) https://hudoc.echr.coe.int/eng-
| press/#{%22fulltext%22:[%2233...}
|
| Edit: Yuck, this website makes it impossible to permalink
| anything. What a horrible idea for an organization that's
| supposed to make very important decisions that people need to
| reference.
| Quanttek wrote:
| Click on "details" and you can permalink
| 1f60c wrote:
| FOR THESE REASONS, THE COURT Holds, unanimously,
| that it has jurisdiction to deal with the applicant's
| complaints in so far as they relate to facts that took place
| before 16 September 2022; Declares, unanimously, the
| complaint concerning the alleged violation of the right to
| respect for private life and correspondence admissible;
| Holds, unanimously, that there has been a violation of Article
| 8 of the Convention; Holds, by five votes to two, that
| there is no need to examine the complaint under Article 13 of
| the Convention; Holds, by six votes to one, that the
| finding of a violation constitutes in itself sufficient just
| satisfaction for any non-pecuniary damage sustained by the
| applicant; Dismisses, by six votes to one, the
| applicant's claim for just satisfaction. Done in
| English, and notified in writing on 13 February 2024, pursuant
| to Rule 77 SSSS 2 and 3 of the Rules of Court.
| Quanttek wrote:
| Relevant paras:
|
| > (g) Statutory requirement to decrypt communications
|
| > 76. Lastly, as regards the requirement to submit to the
| security services information necessary to decrypt electronic
| communications if they are encrypted, the Court observes that
| international bodies have argued that encryption provides
| strong technical safeguards against unlawful access to the
| content of communications and has therefore been widely used as
| a means of protecting the right to respect for private life and
| for the privacy of correspondence online. In the digital age,
| technical solutions for securing and protecting the privacy of
| electronic communications, including measures for encryption,
| contribute to ensuring the enjoyment of other fundamental
| rights, such as freedom of expression (see paragraphs 28 and 34
| above). Encryption, moreover, appears to help citizens and
| businesses to defend themselves against abuses of information
| technologies, such as hacking, identity and personal data
| theft, fraud and the improper disclosure of confidential
| information. This should be given due consideration when
| assessing measures which may weaken encryption.
|
| > 77. As noted above (see paragraph 57 above), it appears that
| in order to enable decryption of communications protected by
| end-to-end encryption, such as communications through
| Telegram's "secret chats", it would be necessary to weaken
| encryption for all users. These measures allegedly cannot be
| limited to specific individuals and would affect everyone
| indiscriminately, including individuals who pose no threat to a
| legitimate government interest. Weakening encryption by
| creating backdoors would apparently make it technically
| possible to perform routine, general and indiscriminate
| surveillance of personal electronic communications. Backdoors
| may also be exploited by criminal networks and would seriously
| compromise the security of all users' electronic
| communications. The Court takes note of the dangers of
| restricting encryption described by many experts in the field
| (see, in particular, paragraphs 28 and 34 above).
|
| > 78. The Court accepts that encryption can also be used by
| criminals, which may complicate criminal investigations (see
| Yuksel Yalcinkaya v. Turkiye [GC], no. 15669/20, SS 312, 26
| September 2023). However, it takes note in this connection of
| the calls for alternative "solutions to decryption without
| weakening the protective mechanisms, both in legislation and
| through continuous technical evolution" (see, on the
| possibilities of alternative methods of investigation, the
| Joint Statement by Europol and the European Union Agency for
| Cybersecurity, cited in paragraph 33 above, and paragraph 24 of
| the Report on the right to privacy in the digital age by the
| Office of the United Nations High Commissioner for Human
| Rights, cited in paragraph 28 above; see also the explanation
| by third-party interveners in paragraph 47 above).
|
| > 79. The Court concludes that in the present case the ICO's
| statutory obligation to decrypt end-to-end encrypted
| communications risks amounting to a requirement that providers
| of such services weaken the encryption mechanism for all users;
| it is accordingly not proportionate to the legitimate aims
| pursued.
|
| > (d) Conclusion
|
| > 80. The Court concludes from the foregoing that the contested
| legislation providing for the retention of all Internet
| communications of all users, the security services' direct
| access to the data stored without adequate safeguards against
| abuse and the requirement to decrypt encrypted communications,
| as applied to end-to-end encrypted communications, cannot be
| regarded as necessary in a democratic society. In so far as
| this legislation permits the public authorities to have access,
| on a generalised basis and without sufficient safeguards, to
| the content of electronic communications, it impairs the very
| essence of the right to respect for private life under Article
| 8 of the Convention. The respondent State has therefore
| overstepped any acceptable margin of appreciation in this
| regard.
|
| > 81. There has accordingly been a violation of Article 8 of
| the Convention.
| duxup wrote:
| This article doesn't actually contain any information that backs
| up the title, or if the title is true at all.
|
| There's a quote from some party member who doesn't seem directly
| involved, and almost no information about the actual case /
| ruling.
| Quanttek wrote:
| For a better understanding: The Court held (in the circumstances
| of this case) that a legal obligation to decrypt E2E
| communications is a disproportionate interference with the right
| to privacy. The law in question specifically obligated messengers
| such as Telegram to hand over communications alongside the
| "information necessary to decrypt electronic messages if they
| were encrypted".
|
| To come to that conclusion, it referred to the wide-scale impact
| such a weakening of E2E through backdoors would have and referred
| to "calls for alternative 'solutions to decryption without
| weakening the protective mechanisms, both in legislation and
| through continuous technical evolution.'" Looking at the cited
| material, these include traditional policing, undercover
| operations, metadata analysis, international police cooperation,
| live forensics on seized devices, guessing or obtaining private
| keys held by parties to the communication, using vulnerabilities
| in the target's software or sending an implant to targeted
| devices.
|
| While a ruling on a specific case (and law), the Court seems
| quite skeptical towards any "requirement that providers of such
| services weaken the encryption mechanism for all users". If I
| were the UK government, I would be quite worried that the UK
| Online Safety Bill will be overturned by domestic courts (or the
| European Court) on the basis of this ruling.
|
| (It should be noted that, although the backdooring of E2E was
| considered to go beyond how the right to privacy may legitimately
| be restricted, the right to privacy is a so-called derogable
| right, i.e. a government can, upon declaration of a state of
| emergency, derogate from the right insofar that is necessary to
| address an emergency "threatening the life of the nation" (Art 15
| ECHR))
|
| Relevant paragraphs are paras 76-80 here:
| https://hudoc.echr.coe.int/eng/#{%22itemid%22:[%22001-230854...}
| Aachen wrote:
| > The Court held that a legal obligation to decrypt E2E
| communications is a disproportionate interference with the
| right to privacy.
|
| *when no adequate safeguards against abuse are in place
|
| Unfortunately it is not as straightforward as that it's
| incompatible altogether. Per this ruling, it's only
| incompatible when there are no good safeguards (they use the
| word "adequate" in one place and "suitable" in another, neither
| is very specific about what it means)
| Quanttek wrote:
| Yes, that is very true. The Court generally does not oppose
| surveillance measures in general, as long as adequate
| safeguards are in place. However, I read the relevant
| paragraphs (paras 76-79) to be quite a strong rejection of
| any statutory obligation that would effectively require the
| installation of a backdoor undermining E2EE. The criticism of
| a lack of adequate safeguards and the risk of abuse is more
| focused on other aspects of the law.
|
| That also becomes clear in the key paragraph 80: "The Court
| concludes from the foregoing that the contested legislation
| providing for the retention of all Internet communications of
| all users, the security services' direct access to the data
| stored _without adequate safeguards against abuse_ _and_ the
| _requirement to decrypt encrypted communications_, as applied
| to end-to-end encrypted communications, cannot be regarded as
| necessary in a democratic society "
|
| The Court does not qualify the requirement to decrypt E2EE
| communications with the same safeguards requirements. That of
| course does not exclude the possibility of the Court finding
| that a more narrowly-construed law is not in violation. But
| the Court clearly signals its skepticism towards any
| "requirement that providers of such services weaken the
| encryption mechanism for all users" (para 79).
| bondarchuk wrote:
| Yes, this was a problem all along with arguments against
| surveillance (/encryption weakening) based on "it can be
| abused by bad actors" - it implies that one would be ok
| with surveillance if it could not be abused by bad actors.
| While it's tempting to use such arguments (it looks like
| they had effect in this case at least) it remains necessary
| to emphasize the true reasons one takes a stand against
| surveillance e.g. authoritarian overreach or a fundamental
| right to privacy.
| Karellen wrote:
| Do you think that phone taps and mail-opening warrants,
| issued by judges, based on evidence submitted to the
| court that such warrants are appropriately targetted and
| based on existing evidence and reasonable suspicion, are
| intrinsically "authoritarian overreach"?
| JoshTriplett wrote:
| Not inherently, but they _become_ overreach when they
| start claiming that they should be able to apply to E2EE
| protocols.
|
| If you want the data from an E2EE protocol, serve an
| appropriately targeted and scoped warrant to one of the
| endpoints. This also provides an opportunity for legal
| challenge (e.g. for scope overreach).
| burkaman wrote:
| From paragraph 64:
|
| > For a detailed description of safeguards that should be set
| out in law for it to meet the "quality of law" requirements
| and to ensure that secret surveillance measures are applied
| only when "necessary in a democratic society", see Roman
| Zakharov, SSSS 231-34, and Big Brother Watch and Others, SSSS
| 335-39
|
| I am not a lawyer and not motivated enough to go read those
| decisions, but if anyone is curious that is probably the
| place to start to figure out what might count as "adequate
| safeguards".
| iamthirsty wrote:
| > the UK Online Safety Bill will be overturned by domestic
| courts (or the European Court) on the basis of this ruling.
|
| The UK wants to leave the ECHR[0], so they might be able to get
| around it -- unfortunately.
|
| --
|
| [0]: https://www.chathamhouse.org/2023/03/uk-must-not-
| sleepwalk-l...
| stranded22 wrote:
| The UK DOES NOT WANT TO LEAVE THE ECHR.
|
| Select people in the government want to, not the whole of UK.
| noir_lord wrote:
| To tack onto this I don't think most people in the UK
| understand what the ECHR does and why leaving the EU didn't
| alter our obligations under the ECHR.
|
| The media carries a lot of responsibility for that but not
| _all of it_ - nearly every person in the UK carries a
| little box with access to a huge chunk of the sum total of
| all human knowledge, they just choose to not to use it.
|
| If that sounds elitist or arrogant it's because I've about
| reached my limit with ignorant people refusing to
| understand the world is messy and complex.
| robertlagrant wrote:
| It doesn't sound elitist or arrogant - quite the
| opposite. It just assumes that people know what's true
| and what's not up front, and know when the media is
| telling them the truth. Their little box doesn't only
| tell them true things.
| tailspin2019 wrote:
| Good clarification.
|
| Personally I just hope we can remove those "select people"
| from office before they can actually carry out their plan.
| ein0p wrote:
| You can't remove the administrative state. It'll be happy
| to sustain the illusion of "democracy" for you by
| throwing a few of its representatives under the bus every
| now and again, but in the end all of the candidates you
| get to vote for are 100% acceptable to the administrative
| state and are anointed by it.
| willmadden wrote:
| The coverage I heard on the BBC and NPR in the States about
| Brexit and UK public sentiment was a complete inversion of
| reality. I'm reluctant to believe anyone telling me what
| the UK wants.
| mobiuscog wrote:
| Nobody really knows what public sentiment is in the UK,
| because nobody is asking. They're all just telling the
| people what they 'want'.
|
| The sample sizes for any polls are tiny, and the
| areas/people that are sampled are not comprehensive.
|
| It's fairly likely that the people (or a majority of)
| want the Tories out, as all sides are suggesting that and
| it's about the only consensus we see.
|
| Brexit was such a mess of misinformation and rushed
| voting, on something that the majority of people had no
| idea 'what' they were really voting for, that it should
| never have been taken as binding - and it probably
| wouldn't have been if the remain vote won.
|
| At this point, it's unclear if the UK will start to even
| recover in the next 5 years, or just keep getting worse.
| zajio1am wrote:
| I think it is more correct to use 'UK' (or any other
| country) just for government and its institutions than for
| the body of its citizens.
| JoshTriplett wrote:
| I think the post you're replying to is rightfully
| observing that that semantic ambiguity creates harm, by
| equating the position of a country's government to the
| position of a country's people. Being more specific and
| saying "a faction within the UK government wants to..."
| seems like a better framing for any discussion.
| dfawcus wrote:
| A minor quibble. The UK is a 'state', not a 'country'.
|
| It comprises of countries: Scotland, England, Wales, and
| a small chunk of Ireland.
| iamthirsty wrote:
| As recognized by the rest of the world, the United
| Kingdom actually is a country.
|
| Internally may be different, but technically it is a
| country.
|
| A political union of four member countries -- but still
| recognized as a country.
| dambi0 wrote:
| International football being one exception to this.
| rsynnott wrote:
| The UK leaving the ECHR, at this point, seems incredibly far-
| fetched; even amongst the Tories it's hardly a consensus
| position, and they realistically only have a few month of
| working time left before the next election.
| M2Ys4U wrote:
| >While a ruling on a specific case (and law), the Court seems
| quite skeptical towards any "requirement that providers of such
| services weaken the encryption mechanism for all users". If I
| were the UK government, I would be quite worried that the UK
| Online Safety Bill will be overturned by domestic courts (or
| the European Court) on the basis of this ruling.
|
| It's worth noting that UK courts _can 't_ overturn Acts of
| Parliament.
|
| The best they can do is issue a declaration of incompatibility,
| which enables ministers to use secondary legislation to correct
| any defect rather than having to go through the process of
| passing another act (if they have the political will to do
| so...).
|
| Having said that, a lot of how the Online Safety Act tries to
| get things done is through secondary legislation and statutory
| codes and guidelines; these all _can_ be quashed by the courts
| (unless the Act constrains the way the other instruments are
| made in such a way that it 'd be illegal _not_ to make an
| infringing instrument) so it 'll be interesting to see how that
| plays out.
| seanw444 wrote:
| > It's worth noting that UK courts can't overturn Acts of
| Parliament.
|
| Interesting. I didn't know this, and as an American, it seems
| quite odd. Decisions by the parliament are treated as
| immutable there?
|
| Here, if a bill passed by Congress is deemed
| unconstitutional, it can be struck down by the Supreme Court.
| arethuza wrote:
| They aren't immutable, but they can only be changed by
| Parliament:
|
| _" the courts cannot overrule its legislation and no
| Parliament can pass laws that future Parliaments cannot
| change. Parliamentary sovereignty is the most important
| part of the UK constitution"_
|
| https://www.parliament.uk/about/how/role/sovereignty/
| denton-scratch wrote:
| The only constitution that the UK has consists of Acts of
| Parliament. So I don't know why it should seem odd; the US
| courts can't strike clauses of the US Constitution, and the
| UK courts can't strike Acts.
|
| Amusingly, the UK government is currently trying to pass an
| Act to the effect that black is equivalent to white, i.e.
| that Rwanda is a safe country to which asylum seekers can
| be sent. This is analogous to the State of Indiana trying
| to legislate that the value of Pi shall be 3.2. You can't
| legislate a fact.
| aftbit wrote:
| In the US, it's quite hard to change the constitution. It
| requires agreement from 2/3rds of Congress followed by
| ratification by the individual legislatures of 3/4ths of
| the states. Such a thing has not been done since 1992,
| and not on a politically charged question since 1971.
| bluGill wrote:
| There is also a convention of the states that can change
| the constitution. It has been talked about by various
| groups from time to time, but has never happened.
| etothepii wrote:
| Are you sure? Isn't that how the ban on alcohol was
| lifted?
| bluGill wrote:
| good question. I'm not clear after reading Wikipedia how
| that happened. US congress called for this which is how
| amendments are normally handled, but then it seems to
| have done something weird.
|
| I'm not interested enough in the question to dig deeper
| to figure out what is what. I'll leave this as a "I stand
| corrected" but if you care do dig deeper.
| matthewowen wrote:
| There are two types of constitutional convention.
|
| State ratifying conventions, which you are correct is the
| way that the 21st amendment was ratified by the states
| after having received a two thirds majority in congress:
| https://en.wikipedia.org/wiki/State_ratifying_conventions
|
| Article V conventions, which replace the legislature
| stage but then need to be ratified by the states either
| by the legislatures or by a state ratifying convention: h
| ttps://en.wikipedia.org/wiki/Convention_to_propose_amendm
| en...
|
| the latter has never happened and the constitution is
| very vague about what they would entail, and I think is
| what the earlier poster was referencing (there has been
| some recent noise around them)
|
| this graphic is quite helpful: https://en.wikipedia.org/w
| iki/State_ratifying_conventions#/m...
| JumpCrisscross wrote:
| > _Such a thing has not been done since 1992_
|
| We're a 235-year old republic. Changing the firmware once
| every 10 to 15% of the time seems fine.
|
| > _and not on a politically charged question since 1971_
|
| This is a feature. If a question is charged it should be
| resolved first federally, through the states, and then
| politically, via the legislature. Only once there is
| consensus should it be elevated to Constitutional status.
| That is the only way to get a Constitution Americans
| believe in with intergenerational force.
| Gormo wrote:
| And given that the point of a constitution is to set the
| bounds within policy-making takes place, rather than to
| enact policy on any specific issue, this is a very
| important thing.
|
| Past attempts to shoehorn answers to specific policy
| questions into the constitution have been disasters, but
| even if they hadn't been, using constitutional amendment
| as a vehicle for policy is effectively the same as having
| no constitution at all.
| jltsiren wrote:
| I believe that a constitution should get a full rewrite
| once every 50-60 years. That's to only way to ensure that
| the constitution remains legitimate and relevant.
|
| The US does not really have a constitution. There is a
| set of documents that claims to be the constitution, but
| it's so out of date that it can't serve as one. Then
| there is the Supreme Court, which can change the actual
| constitution easily with its creative interpretations.
| Because there is no need for a widespread consensus for
| changing the constitution, its legitimacy remains
| questionable at best.
| PaulDavisThe1st wrote:
| You cannot use that process for constitutional questions.
|
| Consider the dispute in the USA over the correct
| intepretation of the 2nd Amendment. A state (such as NY)
| implements legislation embodying that state's
| interpretation of the amendment. SCOTUS rules that the
| legislation in fact violates the amendment. No change is
| possible until the constitution is changed ... or the
| composition of the SCOTUS is modified, and a new court
| decides that stare decisis is not relevant, which leads
| to a different type of change to the constitution:
| interpretation.
|
| The only way to change the actual text of the
| constitution is to change the constitution, and that does
| not require consensus, just a super-majority.
| light_hue_1 wrote:
| It's definitely odd! That's not a reason for UK courts
| not to strike down acts, or more properly, to have
| judicial review.
|
| Take Canada. Canada has a Supreme Court and no written
| constitution. The formal divorce between Canada and the
| UK was not long ago so we inherited the same legal
| framework (modulo Quebec but it doesn't play a role
| here). Yet the Canadian Supreme Court can and does strike
| down federal laws! Actually, provincial courts can too,
| and then the federal government gets to appeal to them to
| the Supreme Court if it wishes.
|
| Take Israel. There's no written constitution. Just the
| Basic Laws. They're just laws, they can be amended at any
| time. Yet, the Supreme Court can and does strike down
| laws. It's even striking down changes to the Basic Laws.
| That's part of the current political strife.
|
| There is a worldwide movement for judicial review.
| Usually, supreme courts start with conservative powers
| and then grow them. Judicial review is not explicitly
| called out in the US constitution either. The US Supreme
| Court had to assert that it can strike down
| unconstitutional laws. This took about 15 years and some
| careful wrangling. The particular argument of Marbury v.
| Madison doesn't apply to the UKSC of course.
|
| But there are already law review articles spelling out
| other legal theories that could be used to assert that
| the UKSC has the power to strike down Acts. I suspect the
| UKSC will follow other supreme courts and free themselves
| of Parliament in the coming decades.
| smnrchrds wrote:
| Canada's constitution has written and unwritten parts.
| The Constitution Act of 1982 (which includes the Charter
| of Rights and Freedoms), for example, is a written part
| of Canada's constitution. Changing the charter would
| require the procedure for constitutional change, which is
| rather difficult. It's not something that can be amended
| like a normal act of the parliament.
| light_hue_1 wrote:
| That's fair. I was using the term "written constitution"
| from the perspective of a US reader.
|
| There's no document that says "I'm the constitution,
| that's it".
|
| Canada works under the idea of an open constitution.
| There's a collection of documents that become entrenched
| and are considered part of the constitution. There are
| endless debates about exactly which documents should be
| considered.
|
| Since the amending formula has made changes impossible,
| basically all we can do is hope the Court will expand the
| constitution in a way that serves the public.
|
| It's unclear that we really wanted to give the Supreme
| Court this power. And some argue that this makes the
| Canadian Supreme Court the most powerful one in the
| world. Certainly not even the US Supreme Court can decide
| the contents of the Constitution, only its
| interpretation.
|
| And that's before we get to Quebec and their crazy theory
| about what section 45 means which would make the whole
| idea of a constitution a mess.
|
| And of course, we're not going to mention the
| notwithstanding clause.
| bawolff wrote:
| > There's no document that says "I'm the constitution,
| that's it".
|
| Umm section 52(2) of the constitution act? I mean,i guess
| that is not exhaustive, but its most of it.
|
| > There are endless debates about exactly which documents
| should be considered.
|
| I think you are significantly overstating that. There is
| some debate, but its mostly theoretical and rarely comes
| up in practise.
|
| > Since the amending formula has made changes impossible
|
| Its not easy but its not that hard, just nobody agrees on
| anything. The process for ammending the canadian
| constitution is roughly the hard as the american one
| (except for stuff to do with the monarch). Americans need
| 75% of states, we need 70% of provinces which must
| contain 50% of the population. Basically the same.
|
| > And of course, we're not going to mention the
| notwithstanding clause.
|
| What about it? I might personally not like it, but i
| don't see how it confuses anything in the constitution.
| denton-scratch wrote:
| > or more properly, to have judicial review.
|
| I think that in the UK, judicial review doesn't apply to
| Acts of Parliament. It applies to administrative
| decisions, so things like employment tribunals, benefits
| decisions, medical decisions and so on. Judges aren't
| supposed to be able to reverse legislation (although, in
| practice, they can fatally undermine it).
| bregma wrote:
| The Supreme Court of Canada does not strike down federal
| laws. It follows section 52 of the written constitution
| [0] that states the following. 52 (1) The
| Constitution of Canada is the supreme law of Canada, and
| any law that is inconsistent with the provisions of the
| Constitution is, to the extent of the inconsistency, of
| no force or effect.
|
| All the SCC can do is rule whether or not a law (of any
| jurisdiction, including federal, provincial, or
| otherwise) is consistent with the Constitution of Canada.
| If a law is not consistent with the constitution, then
| the law has no force or effect, according to the law.
| That's not "striking down", since the inconsistent law or
| portion thereof was never valid in the first place.
|
| [0] https://laws-
| lois.justice.gc.ca/eng/Const/page-13.html#h-59
| light_hue_1 wrote:
| That's what "striking down" a law is. Even in the US!
|
| From the Opinion in Murphy v. National Collegiate
| Athletic Association:
|
| > And courts do not have the power to "excise" or "strike
| down" statutes. See 39 Op. Atty. Gen. 22, 22-23 (1937)
| ("The decisions are practically in accord in holding that
| the courts have no power to repeal or abolish a
| statute"); Harrison 82 ("[C]ourts do not make
| [nonseverable] provisions inoperative . . . .
| Invalidation by courts is a figure of speech")
|
| Which then goes on to cite this Virginia Law review that
| goes into detail about the confusion between the
| terminology vs the reality: https://www.supremecourt.gov/
| opinions/URLs_Cited/OT2017/16-4...
|
| > But the federal judiciary has no authority to alter or
| annul a statute. The power of judicial review is more
| limited: It allows a court to decline to enforce a
| statute, and to enjoin the executive from enforcing that
| statute. But the judicially disapproved statute continues
| to exist as a law until it is repealed by the legislature
| that enacted it, even as it goes unenforced by the
| judiciary or the executive. And it is always possible
| that a future court might overrule the decision that
| declared the statute unconstitutional, thereby liberating
| the executive to resume enforcing the statute against
| anyone who has violated it. Judicial review is not a
| power to suspend or "strike down" legislation; it is a
| judicially imposed non-enforcement policy that lasts only
| as long as the courts adhere to the constitutional
| objections that persuaded them to thwart the statute's
| enforcement.
|
| That being said. You said the written constitution of
| Canada. From both the UK and the US perspective that's
| really confusing. Canada's constitution is partly written
| and partly unwritten and slowly expands over time as
| other documents are entrenched.
|
| From the US perspective, the Canadian constitution isn't
| the same kind of entity as the US constitution, it's just
| an Act of Parliament. From the UK perspective this means
| that anything goes because obviously Parliament should
| get to change its Act as it wishes (one of the core
| tenants is that past Parliaments cannot bind future
| Parliaments).
|
| Anyway. That's how striking down laws works.
| logifail wrote:
| > that Rwanda is a safe country to which asylum seekers
| can be sent
|
| Putting aside whether the UK government's approach is a
| sensible one (which in my view it isn't) we should be
| aware that:
|
| "the UNHCR, with financial support from the EU, has
| transferred refugees from Libya to Rwanda under a scheme
| called the Emergency Transit Mechanism (ETM) [..] The ETM
| offers vulnerable refugees, taken into detention by the
| Libyan authorities, a choice to have their application
| processed in Rwanda."[0]
|
| "In 2019, the [Rwandan] Government established the
| Emergency Transit Mechanism (ETM) Centre that hosted 824
| refugees evacuated from Libya. Currently, the transit
| centre hosts 371 evacuees while working on long-term
| solutions continues. By the end of 2021, 462 refugees had
| resettled to third countries so far."[1]
|
| So Rwanda was apparently safe enough for the UNHCR to
| offer to process _some_ refugees there.
|
| [0] https://www.bbc.co.uk/news/uk-politics-67431602
|
| [1] https://www.unhcr.org/uk/countries/rwanda
| Aeolun wrote:
| > So Rwanda was apparently safe enough for the UNHCR to
| offer to process some refugees there.
|
| I think the key word here is _safer_. It wasn't safe by
| any definition of the word, but a fair deal safer than
| the place they came from.
| logifail wrote:
| > It wasn't safe by any definition of the word, but a
| fair deal safer than the place they came from
|
| (Playing devil's advocate) why would this not also apply
| to those refugees fleeing to Europe?
|
| Isn't Rwanda "a fair deal safer" than Afghanistan? (This
| is a genuine question)
| pmyteh wrote:
| The UK courts partly relied on evidence that those asylum
| seekers were not always treated in accordance with the
| convention. The Supreme Court judgment noted cases of
| refoulement (expulsion to the state the asylum seeker is
| fleeing from) as well as structural deficiencies in the
| decision-making process.
| (https://www.bailii.org/uk/cases/UKSC/2023/42.html at
| paragraphs 89 and onwards).
|
| They also suggested that the UNHCR was mostly processing
| applications for asylum in third countries for ETM
| evacuees. An obvious difference with the UK scheme is
| that we expect Rwanda to grant asylum themselves.
| pjc50 wrote:
| Yeah, I don't think it's quite as simple as commentators
| are making out, because ECJ rulings have roughly
| constitutional-level effects in disapplying Acts.
| TillE wrote:
| Judicial review isn't necessarily an obvious or completely
| desirable concept. It's not in the US Constitution either,
| and Marbury v. Madison is still somewhat controversial.
| Gormo wrote:
| From the outset, officials in all branches of government
| have sworn an oath to uphold the constitution in the
| conduct of their duties, and the constitution explicitly
| states that it is the supreme federal law, so it seems
| that Marbury vs. Madison would follow logically from the
| justices' obligation to only issue rulings consistent
| with the constitution as they understand it.
|
| One could regard the legislature as having an equivalent
| duty to refrain from enacting statutes incompatible with
| the constitution, and the executive as having an
| equivalent duty to refrain from enforcement actions
| inconsistent with the constitution, but historically, the
| judiciary seems to have been the only branch to take its
| duty seriously.
| glitchc wrote:
| Yup, that's because the UK doesn't _have_ a constitution.
| arethuza wrote:
| It doesn't have a codified constitution in the US sense
| but it does have a constitution:
|
| https://en.wikipedia.org/wiki/Constitution_of_the_United_
| Kin...
|
| Edit: I would certainly agree that having constitution in
| this form isn't a great idea...
| bemusedthrow75 wrote:
| A written constitution doesn't really seem to work out
| better, though, does it?
| simonh wrote:
| Frankly, the US system isn't exactly a resounding
| vindication of written constitutions either. Arguably the
| UK system has displayed considerably greater flexibility.
| For example the US president is still basically an
| elected George III.
| dfawcus wrote:
| Well it does, in written bits in various places, and some
| as precedent.
|
| However it is a bit more complex. England has a
| constitution (that collection above), Scotland has a
| different (and somewhat incompatible) constitution.
|
| The incompatibility being where the seat of Sovereignty
| lies. In Scotland with the people, in England with the
| Monarch (but wrested away by Parliament).
|
| So when the two countries formed the new state of Great
| Britain, and dissolved their prior states, they granted
| it a minimal constitution. However they couldn't grant
| more than they had, and the Scottish grantors did not
| hold sovereignty. Hence claiming that UK Parliament is
| sovereign is to presume that England annexed Scotland.
|
| That continuing incompatibility is (IMO) why we've never
| had a single written GB/UK constitution, and probably
| never will. It will require addressing the fact that
| we're acting as if Scotland was annexed, and to put that
| in writing will cause its own problems.
| bemusedthrow75 wrote:
| > Decisions by the parliament are treated as immutable
| there?
|
| Yes, and no.
|
| Parliament is sovereign -- it is the supreme legal
| authority.
|
| But it cannot bind its successors. So any law parliament
| creates, any decision can be overturned by a subsequent
| parliament.
| sorokod wrote:
| Is that not similar to how the US constitution is
| managed? It was amended and latter un-amended in the case
| of prohibition (18th and 21st amendments)
| bemusedthrow75 wrote:
| The "parliament cannot bind its successors" principle was
| absolutely (and deliberately) imported into US law, yes.
|
| It's more general -- no branch of government can bind its
| own successors. (With the exception of e.g. presidential
| pardons which cannot be undone)
| Aeolun wrote:
| I think this is generally true? It'd be weird if there
| were some laws from 30 years ago that nobody wanted, but
| were not legally allowed to be changed. You'd just change
| them anyway and nobody would care.
| dukeyukey wrote:
| Parliament is sovereign. Basically, as long as Parliament
| says so, it can do what it wants, although it can be slowed
| down by institutions like the Supreme Court or the royal
| family. There is no real separation powers.
|
| Which _sounds_ bad, but the UK has an extremely long
| history of relative stability compared to basically
| anywhere else on the planet, so something must be going
| right.
| sorokod wrote:
| This stability presupposes a presence of adults in the
| room.
| pmyteh wrote:
| It's sometimes described as the 'good chap' theory of
| governance. Everyone is expected to be a gentleman, so
| flexibility is possible with an absence of formal
| guardrails.
|
| It obviously handles capture by bad faith actors fairly
| poorly; the hope is that such people or movements can be
| stopped before they get that far. Johnson was pretty
| marginal as a PM from this point of view.
| sorokod wrote:
| Thanks, haven't heard of the 'good chap' theory of
| governance before. Lovely name that emphasizes how
| inadequate such system is in the 21st century. Or perhaps
| it was never adequate:
|
| https://www.prospectmagazine.co.uk/politics/37844/has-
| the-go...
| ben_w wrote:
| > Which _sounds_ bad, but the UK has an extremely long
| history of relative stability compared to basically
| anywhere else on the planet, so something must be going
| right.
|
| The more I learn about British history, the more I think
| this reputation for stability is merely due to how well
| all the civil wars (and parliament inviting in a new
| royal family) were brushed over.
| pjc50 wrote:
| > It's worth noting that UK courts can't overturn Acts of
| Parliament
|
| Eh. I think that grossly understates https://en.wikipedia.org
| /wiki/R_(Factortame_Ltd)_v_Secretary... ; while it does not
| remove the law from the books, incompatibility with ECJ
| rulings does effectively disapply the law.
|
| This is why there's such a fight over the Rwanda bill:
| https://www.bbc.co.uk/news/uk-politics-68283703 . ECHR is
| effectively constitutional law in the UK, not an ordinary Act
| of Parliament. Courts have ruled that deporting people to
| dangerous countries breaches ECHR. The government is trying
| to legislate the ""fact"" that Rwanda is ""safe"" in order to
| circumvent that, because they're not quite yet ready to throw
| out ECHR entirely and haven't had decades to pack the courts.
| M2Ys4U wrote:
| Well, yes, there's some nuance here. Where there's an Act
| of Parliament that says courts can dis-apply other Acts of
| Parliament then the courts can do so.
|
| But the Human Rights Act does not do this, even though it
| has quasi-constitutional status, and as far as I know now
| that the European Communities Act has been repealed no Act
| of Parliament does this.
|
| A better case to cite than _Factortame_ would be _R
| (Jackson) v Attorney General_ , where the House of Lords
| (in its judicial function before that was removed to the
| Supreme Court) entertained the idea that in extremis
| parliamentary sovereignty was not absolute.
|
| If the government continues its showdown over Rwanda the
| Supreme Court might be forced to re-visit that idea.
|
| But the law as it is applied right now means that courts
| cannot overturn actsof Parliament.
| chippiewill wrote:
| The best isn't necessarily a declaration of incompatibility,
| that's mostly specific to ECHR.
|
| In general if parliament passes legislation that contradicts
| earlier legislation that wasn't repealed and it wasn't
| deliberate then a judge can determine that parliament didn't
| intend to override that earlier legislation and that the new
| legislation doesn't apply in a given context.
|
| Parliamentary supremacy exists, but only where parliament
| takes a deliberate action.
| JNRowe wrote:
| I wholeheartedly recommend How Parliament Works1 for people
| who want a deep dive on these points. It is nowhere near as
| dry as you'd imagine for a five hundred page book about
| parliament.
|
| While used copies are super cheap I'd also recommend picking
| up a current revision. Recent years have seen far more use(or
| attempts to use) some of the more obscure tools of both
| houses. The updates include more explanation of those topics,
| along with descriptions of recent cases before the courts.
|
| 1 https://www.amazon.co.uk/dp/1032015012
| turquoisevar wrote:
| Prefacing this with the fact that I never had a good feel for
| UK law due, in part due to it being a common law system vs.
| the common law system I'm more familiar with on mainland
| Europe. Plus, I've not kept up with what, if anything, the UK
| maintained concerning supranational jurisdiction after
| Brexit.
|
| That said, what you describe is similar to that of some EU
| countries. Take the Netherlands for example.
|
| In the Netherlands, courts can't test laws passed by the
| Dutch parliament to the Dutch constitution. Even the Dutch
| Supreme Court doesn't have that power (and Dutch legal
| scholars will therefore deny that the Dutch Supreme Court is
| a so-called "constitutional court" like the Germans have, for
| example).
|
| Still, in practice, this is a non-issue because the legal
| hierarchy places international and EU law above Dutch law,
| making it the supreme law of the land.
|
| Subsequently, this allows Dutch courts to test against
| international and EU law, which, for the most part anyway,
| have similar provisions to that of the Dutch constitution
| when it comes to (human) rights.
|
| I suppose the question I'm asking is if in practice, the
| situation is the same or similar in the UK?
| Aeolun wrote:
| > In the Netherlands, courts can't test laws passed by the
| Dutch parliament to the Dutch constitution.
|
| What does that mean in practice? That the constitution
| always overrides any law passed by parliament?
| Gormo wrote:
| It sounds like it means the exact opposite, i.e. that in
| the Netherlands, there is no judicial mechanism for
| overturning unconstitutional legislation.
| turquoisevar wrote:
| It's the other way around, actually... sort of.
|
| It means that a Dutch court can't test the
| constitutionality of laws made by the Dutch government in
| concert with parliament. In legal parlance translated
| from Dutch, these would be called "laws in the formal
| sense."
|
| The way it works is that the Dutch government (i.e., the
| Dutch ministers and the King, albeit the latter only in a
| ceremonious role) proposes a bill, and the two Dutch
| legislative houses (House of Representatives and Senate)
| vote to pass it.
|
| A law that is a product of this process is deemed a
| "formal law" or "law in the formal sense." Courts cannot
| test these against the Dutch constitution (i.e., look to
| see if they're constitutional).
|
| Other forms of legislation _can_ be tested against the
| constitution by courts.
|
| These are called "material laws" or "laws in the material
| senses" because, materially, they function as a law in
| the sense that they prescribe something and are generally
| binding. Still, they haven't been established in a
| "formal" manner through the process I described above
| that involves the government and parliament.
|
| Examples of such material laws are municipal ordinances
| and royal decrees issued by the Dutch government (akin to
| the American executive orders by the US president).
|
| Some laws that have been materialized through the process
| described above are also considered material laws instead
| of formal laws, but that's more a matter of exception
| when they don't have a generally binding character for
| all citizens (e.g., a permission law for the marriage of
| a specific member of the royal family).
|
| A judge can't look at these formal laws and rule that
| they're unconstitutional.
|
| Ironically, the Dutch constitution itself (art. 120)
| prohibits this test.
|
| The logic at the time was that they wanted to prevent the
| judicial branch from second-guessing the legislative
| branch and that if it misbehaved, the voters could punish
| them during the next election round.
|
| Additionally, they wanted to enshrine that the
| government, in concert with the two legislative houses,
| should be the unimpeachable sole authority to create
| laws.
|
| However, this means that the Dutch constitution functions
| more as a set of guidelines for the highest level of
| legislators than a strict set of rules to abide by.
|
| That said, nowadays, there is some political will here
| and there every couple of legislative sessions to reform
| it so that the courts are allowed to test against the
| constitution, with some ideas even going as far as
| establishing a formal constitutional court for this
| purpose.
|
| As someone who used to practice there, I think it's more
| a matter of trivia that raises eyebrows in your first
| year of law school than something with many practical
| consequences.
|
| As stated before, international and EU treaties have
| taken over the Dutch constitution's role in keeping the
| legislator in check. So far, legislators haven't sought
| to cross the lines in remarkable ways.
|
| Nevertheless, I'd welcome testing constitutionality as an
| extra layer in the legal firewall, provided it's designed
| in a way that leads to results seen in the German,
| French, and Scandinavian models, as opposed to the
| results and effects caused by the SCOTUS in the US.
| bawolff wrote:
| As a canadian, this is interesting, because i always
| thought our system was a copy of the UK system, but our
| courts strike down laws for being unconstitutional all the
| time.
| sandworm101 wrote:
| It is a copy. The UK has a constitution. The UK
| constitution just isn't a simple document one can hang on
| the wall. The UK constitution is a body of knowledge and
| traditions. Recognize and do something a particular way
| for a few hundred years and it can become
| _constitutional_ irrespective of whether it was nicely
| codified in a single document.
|
| One can even say that the US and Canadian constitutions
| don't actually say all that much. They survive because
| they are so open to interpretation by courts ... which
| makes the body of constitutional _knowledge_ needed to
| render decisions not all that different than that needed
| in the UK.
| PaulDavisThe1st wrote:
| Most people understand "a constitution" to mean something
| written down that you can point to, that has the force of
| <something> behind it, that cannot be trivially elided by
| a government.
|
| None of these are true of the UK "constitution", whether
| it is one document or 5000 precedents.
|
| Any document written in a spoken human language will be
| open to interpretation - there's no getting away from
| that, regardless of the language, culture or country the
| document comes from. I still consider that a step up from
| the bullshit assemblage of "constitutional law" that
| claimed to be "the UK constitution".
| thaumasiotes wrote:
| > It's worth noting that UK courts _can 't_ overturn Acts of
| Parliament.
|
| Is that true? I thought the UK had semi-recently (2009)
| introduced a Supreme Court for this purpose.
|
| https://www.unz.com/jderbyshire/lessons-from-britains-
| nation... says this, just a couple of months ago:
|
| > Just this week, on Wednesday, Britain's Supreme Court
| struck down the latest attempt to implement the Rwanda plan.
| (Having a "Supreme Court" that strikes down Acts of
| Parliament is a fairly recent development in Britain.)
| pmyteh wrote:
| We have a Supreme Court. It's the old House of Lords
| judicial committee with new robes, though: the powers are
| nearly identical and the legal business of the HoL has been
| done by the most senior judges since the 19th Century.
|
| The nuance here is that many Acts do not set out a whole
| scheme: they allow government to make subordinate
| regulations with the force of law. The Acts are
| (essentially, kinda) immune from judicial review, but the
| _implementing statutory instruments aren 't_. (They haven't
| had full parliamentary scrutiny and are in practice just
| executive instruments - so can be struck down without
| parliamentary sovereignty problems as _ultra vires_ the
| government).
| martingxx wrote:
| The UK government almost seem to be deliberately passing
| multiple pieces of legislation that they know will be
| overturned due to ECHR, because they believe such rulings would
| strengthen their argument for withdrawing from the convention.
| TheRealPomax wrote:
| Perhaps a dumb question, but why would the EU courts be able to
| overturn laws in the UK now that the UK is not part of the EU
| anymore?
| AAAAaccountAAAA wrote:
| ECHR is not an EU court, but a separate entity, having for
| long had many non-EU member states.
| sandworm101 wrote:
| >> information necessary to decrypt electronic messages if they
| were encrypted
|
| That reminds me of Lavabit, which I once used as my primary
| email. In response to demands for decryption information,
| Lavabit handed over their private keys. On paper. Typed out.
| Possibly with a typo somewhere on page 6, or 12.
|
| https://thenextweb.com/news/you-wont-believe-what-email-prov...
| yxhuvud wrote:
| Nice. I can imagine certain ISPs (that I will not shame by name)
| won't be very happy right now. This really throws a wrench in
| some proxy models.
|
| Good riddance.
| KoolKat23 wrote:
| Please do name and shame. This would benefit everyone.
| kypro wrote:
| I realise the article contains the same typo, but the title is
| bugging me - it needs a space between "end" and "encryption".
| "Endencryption" is not a word.
|
| @dang ?
| yusml wrote:
| Yeah, it's bugging me as well. haha.
| robtherobber wrote:
| Ah, apologies about that, I didn't even notice it. Happy to see
| it corrected.
| max_ wrote:
| Europe has done something that I actually love.
|
| I was worried the "let's think of the children" narrative would
| take over.
|
| The value of encryption has a future in Europe at least.
| guappa wrote:
| Despite the name, it's not the eu :D
| max_ wrote:
| I was assuming it had jurisdiction over the EU?
|
| What is the actual real world impact of this?
| yreg wrote:
| The European Court of Human Rights enforces the European
| Convention on Human Rights.
|
| Its jurisdiction is recognised by the 46 member states of
| Council of Europe (which includes all of the 27 EU members)
| + Kosovo.
| Deukhoofd wrote:
| It's a part of the Council of Europe, which includes all
| European countries besides Russia and Belarus (who got
| kicked out last year). It has no real enforcement powers
| for its judgements, though most countries do adopt most its
| judgements, and it has pushed human rights in Europe
| forward a lot.
|
| While the EU could potentially just ignore the statement,
| there's a good chance they won't, especially as the
| European Parliament already tends to be against weakening
| encryption.
| tpm wrote:
| EU can't ignore it - while the ECHR is separate from the
| EU, the EU itself is legally bound to follow the ECHR
| rulings.
| Deukhoofd wrote:
| ECtHR rulings have been ignored in the past by members.
| Italy for example currently has over 2000 verdicts
| unimplemented. The ECtHR orders a country to implement
| changes to improve the situation, but does not set a
| deadline, so members could just ignore it.
| M2Ys4U wrote:
| >the EU itself is legally bound to follow the ECHR
| rulings
|
| You'd think so, but it actually isn't. All of the EU's
| member states are, but the EU and its institutions
| aren't.
|
| The EU is legally bound to join the Council of Europe
| (and thus come under the jurisdiction of the ECHR),
| except the EU's Court of Justice threw a spanner in the
| works quite a while ago and this is on hold, pretty much
| indefinitely.
|
| The conflict is that the CJEU is supposed to be _the_
| authoritative interpreter of EU law, but if the EU joins
| the CoE then the ECHR could also rule on matters of EU
| law, potentially binding the CJEU, and it doesn 't like
| that very much.
| Deukhoofd wrote:
| > this is on hold, pretty much indefinitely
|
| It's not, negotiations started again in 2020.
|
| https://www.coe.int/en/web/human-rights-
| intergovernmental-co...}
| M2Ys4U wrote:
| oh! I had totally missed that, thanks
| rsynnott wrote:
| The EU requires EU members to be subject to the ECHR, but
| it is a separate body and various non-EU countries are
| subject to it (though, particularly outside the EU,
| compliance varies).
| LightBug1 wrote:
| Excellent news.
|
| The European Court of Human Rights ... the court our idiotic UK
| gvoernment are trying to paint with the same brush they painted
| the EU.
| sackfield wrote:
| It's nice to know this also applies to the UK even after Brexit
| (still a member of the ECHR).
| jacobp100 wrote:
| Oh sweet summer child
| infamouscow wrote:
| I'm not sure why this is being downvoted.
|
| Governments aren't accountable to their citizens, and there
| aren't any repercussions nor punishment for violating rights.
| Sure, the court might have ruled on this, but that's
| irrelevant when the government decides "national security"
| takes precedent and uses the media to manufacture the consent
| of the population into thinking extraordinary times require
| extraordinary measures.
|
| If most of the people with guns want to ignore the court,
| they will.
| Georgelemental wrote:
| Azerbaijan is in the ECHR too; doesn't stop them from
| imprisoning political dissidents, employing slave labor,
| committing war crimes, attacking other ECHR members, or
| performing ethnic cleansing.
| gpderetta wrote:
| Well yes, generally the ECHR has no powers to compel
| compliance.
|
| But ECHR rulings are binding to EU members (and the the
| various organs of the EU including the ECJ have way to
| enforce them).
|
| ECHR are also still binding in the UK because legislation
| that says otherwise hasn't been passed yet.
| TheFuzzball wrote:
| The Tories have been talking about leaving the ECHR for years
| now.
| hayd wrote:
| They should've left, obviously, not sure what they've been
| doing with an 80 seat majority. But a silver lining is
| Cameron/May's "Snoopers' Charter" is utterly dead now.
| rrrrrrrrrrrryan wrote:
| Man, Europe is really setting an example lately for how it's
| possible to roll out sensible technology regulations.
| Georgelemental wrote:
| Now if they could only do a good job developing the technology
| itself...
| IlikeMadison wrote:
| they already do
| pb7 wrote:
| Do they? Examples?
| amarant wrote:
| Spotify, King, DICE and Mojang are some commercial
| software successes. All from Sweden.
|
| If you don't think the entertainment industry counts for
| much, I might remind you Linux was originally made in
| Finland. (Linus Torvalds is half Swede half Finn iirc)
|
| That's just from the top of my head.
| ganieldackle wrote:
| Spotify was made up of 75% US employees since the moment
| it validated its value.
|
| DICE is a failed studio. Battlefield 2042 was one of the
| worst AAA video game launches of all time (with Cyberpunk
| 2077 by Polish studio CD Projekt Red being another) after
| a rocky Battlefield V launch and there is no reason to
| believe they will come back from it.
|
| King makes low quality micro-transaction-riddled games
| for addicts.
|
| Mojang -- OK.
| matsemann wrote:
| Facebook is just scams and intervenes with elections.
| Google is just privacy hell that sells your data for ads.
| Amazon is in the business of abusing its workers. Point
| being, it was asked for success. Not if people like the
| company or not.
| ganieldackle wrote:
| What an intellectually dishonest take comparing Candy
| Crush to US big tech. You should be embarrassed.
| amarant wrote:
| I mean, candy crush is the most downloaded mobile game
| ever, and it's income is measured in millions of dollars
| per DAY.
|
| I don't much like it either, but it's popularity is
| difficult to deny.
|
| By any objective measure, it's a successful company.
| xvector wrote:
| What a cynical interpretation. These companies have QoL
| for billions, directly and indirectly. You are just
| normalized to it now.
|
| For some reason I don't see you blaming Cambridge
| Analytica - the actual company running the interference
| by exploiting APIs - for the interference itself.
| scotty79 wrote:
| Why do what everyone can do if you can do the thing only you
| can do?
|
| ASML
|
| When there's a gold rush, make shovels.
| pb7 wrote:
| That's it? One noteworthy company for a population of 440M?
| berkes wrote:
| Obviously not. There are tons of large companies, many of
| which are often misread as American, because they are
| listed on the Nasdaq or another US exchange.
|
| Many EU companies have far higher revenues than their US
| counterparts (Airbus, Volkswagen, Alstom), are boring but
| crucial (Heidelberg, DTE) or not easily recognised (Novo
| Nordisk, Unilever).
|
| Even in tech, there's a lot of interesting ones:
| Booking.com, elastic search, takeaway (aka GrubHub),
| Adyen, for example are all Dutch. There's or was,
| Spotify, Skype, SoundCloud, Zalando, Mojang, Shazam and
| so on.
|
| Just be a bit more curious and less preoccupied and
| you'll see there's plenty going on in Europe. And don't
| forget that companies can be great and big and
| multinationals even if they aren't present in the US.
| xvector wrote:
| The EU's entire modern tech industry does not even
| measure up to that of one US company.
|
| Dismissals of the EU's inability to compete in tech is
| why EU citizens have missed out on _literally tens of
| trillions of dollars_ in economic growth post-2000s.
|
| The EU's lack of ability to innovate is becoming a
| serious problem for the progress of our species as a
| whole.
| corford wrote:
| If we're talking chips, ARM is also quite noteworthy...
|
| FinTech is pretty awesome in Europe too: Wise, Revolut,
| Klarna, Adyen are all unicorns/decacorns.
| alkonaut wrote:
| There are tons of large european tech companies. But we
| forget that because most of them are 50 or 100 years old.
| klabb3 wrote:
| If only California could do a good job starting as many
| companies as Delaware.
| ulchar wrote:
| Is Delaware a good place for a startup? Or am I missing the
| joke.
| amirdadp wrote:
| Many companies incorporate in Delaware for benefits such
| as loose tax laws.
| miohtama wrote:
| This decision was needed because the EU was about to ban end-
| to-end encryption. It's not the EU commission, but a judge that
| ruled. AFAIK Commission can still ignore this.
| gpderetta wrote:
| They in fact cannot.
| moffkalast wrote:
| Ursula on suicide watch.
| ko27 wrote:
| You have it the other way around. Majority of EU member
| countries wanted to to ban E2E, but the EU institutions
| prevented that.
| denton-scratch wrote:
| > The judgement cites using vulnerabilities in the target's
| software or sending an implant to targeted devices as examples
| [of legitimate ways to defeat E2E encryption].
|
| That looks like a bad judgement, to me; exploiting
| vulnerabilities, or using implants, is generally some kind of
| criminal hacking. So the court seems to be saying that's not OK,
| unless you're a government. I.e., governments don't have to obey
| the law.
|
| There are quite a few EU governments that would prefer not to
| have to comply with the law. Every EU government gets to plant a
| judge on the ECHR bench.
| denton-scratch wrote:
| > Every EU government gets to plant a judge on the ECHR bench.
|
| Every EU Council member?
|
| Not sure why I was downvoted, because the downvoters didn't
| care to comment.
| Georgelemental wrote:
| A "Court of Human Rights" that counts Azerbaijan as a member is
| not a court that should be taken seriously.
| lacoolj wrote:
| this is a HUGE win and could very much help set precedent across
| the globe (looking at our congress specifically, USA). Still more
| hurdles to jump over but a great step in the right direction
| nadermx wrote:
| They also ruled a while ago on site blocking, which has at least
| been tested in the Mexican supreme court[0]
|
| translated via google "As the United Nations Human Rights Council
| has stated, blocking an Internet page implies any measure taken
| to prevent certain online content from reaching an end user. In
| this regard, it must be taken into account that restrictions on
| the human right of freedom of expression should not be
| excessively broad, on the contrary, they should refer to specific
| content; Hence, generic prohibitions on the operation of certain
| websites and web systems, such as blocking, are incompatible with
| the human right of freedom of expression, except in truly
| exceptional situations, which could arise when the contents of an
| Internet page are translate into prohibited expressions, that is,
| classified as crimes in accordance with international criminal
| law, among which the following stand out: (I) incitement to
| terrorism; (II) the advocacy of national, racial or religious
| hatred that constitutes incitement to discrimination, hostility
| or violence - dissemination of "hate speech" on the Internet;
| (III) direct and public incitement to commit genocide; and (IV)
| child pornography. Likewise, the exceptional situation regarding
| the prohibition of generic restrictions on the right of
| expression could also be generated when the entire contents of a
| web page are illegal, which logically could lead to its blocking,
| as it is limited only to hosting expressions that are not
| permissible by law. the legal framework."
|
| [0] https://vlex.com.mx/vid/tesis-aisladas-683012725
| holoduke wrote:
| What the hell is wrong with our democratic values to begin with?
| Why do we need high court decisions for these insane ideas of
| making a better world. Are these people infected by some
| corporate lobby or what is it why they cannot think in favour of
| human kind. I cannot phantom this.
| WalterBright wrote:
| Weakening of secure end-to-end encryption means the encryption is
| worthless.
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