When human rights activist Muhammad Rabbani refused to hand over the passwords to his electronic devices at Heathrow Airport, he was charged with an offence under Schedule 7 of the Terrorism Act.
This is a UK law that allows authorities to stop anybody at the border and ask them for personal information, including passwords.
At the time of his stop, Rabbani was returning from Doha, the capital city of Qatar. He had been taking testimony from a Qatari man named Ali Al-Marri who alleges that he was detained and tortured on mainland US soil for being a suspected terrorist.
Rabbani had never previously been suspected or accused of a crime. Unlike most members of the travelling public, though, he was intimately familiar with the law he was stopped under.
As the managing director of CAGE, which campaigns against discriminatory state policies related to the ‘war on terror’, he routinely works with individuals facing terrorism charges.
Access to the devices
Rabbani estimates that he’s been stopped around 20 times travelling through airports. He is unequivocal that this stop felt different.
“Very early on in the questioning – without actually going through any substantial interview process – the police officers were asking about my devices,” he said to me, when I interviewed him for a new feature documentary, Phantom Parrot. “They wanted access to the devices.”
In a Schedule 7 interrogation, you do not have the right to remain silent; failure to respond is a potential crime. This effectively turns the refusal to disclose one’s password into a potential crime, too.
“Schedule 7 can be exercised without the need for suspicion”
Unlike many other powers, Schedule 7 can be exercised without the need for suspicion. In theory, anybody passing through a UK port or border can be stopped and compelled to hand over their passwords.
When the Terrorism Act was passed in 2000, British lawmakers originally envisioned Schedule 7 as a provision that would enable terrorism suspects to be questioned at the border. Even though smartphones didn’t exist back then, parliamentary debates reveal that certain lawmakers expressed concerns about the Act’s invasion into civil liberties.
These politicians recognised the need to strike a delicate balance between national security and societal freedoms. Concerns were raised; would this law be used to target human rights campaigners – or endanger press freedom?
In many ways, their fears have been realised. When the UK government tried to seize a trove of documents leaked by Edward Snowden in 2013, they used Schedule 7 of the Terrorism Act — the same law that Rabbani was stopped under.
Journalist Glenn Greenwald’s husband David Miranda was stopped while transiting through Heathrow airport, in the process of assisting his husband’s reporting. Miranda’s electronic devices were confiscated, and he was subject to interrogation for nine hours.
A 2016 ruling found that while the authorities’ decision to detain Miranda was lawful, the use of Schedule 7 in his case was incompatible with the European convention on human rights.
In a statement acknowledging the potential chilling effect of Schedule 7 powers on journalism, Lord Dyson, the judge in the court of appeal, posited: “If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest.”
One document leaked by Edward Snowden provides vital context for the experiences of Rabbani and Miranda at the hands of the UK authorities.
It describes a programme called PHANTOM PARROT which involves a policy of stopping people at the border, under Schedule 7 of the Terrorism Act, with the explicit purpose of downloading their data.
The document, initially reported on by Ryan Gallagher in The Intercept, unambiguously illuminates the importance of Schedule 7 to the programme’s legal framework. Under a section titled ‘Legalities’ it states: “The data is legally volunteered under s.7 and s.8 of TACT (Terrorism Act 2000), although the person will not be directly told their phone is downloaded”.
The ‘downloads’ that the document refers to are facilitated by technologies known as Mobile Device Forensic Tools (MDFTs). These technologies allow police to extract a full copy of data from a mobile phone — all emails, texts, photos, location, app data, and more — which can then be programmatically searched.
According to the leaked documents from GCHQ, the UK’s largest intelligence agency, data obtained through Phantom Parrot is fed into a larger database – codenamed LUCKY STRIKE – which, at the time of its publication, contained over a billion records.
The UK government has not disclosed the number of media downloads it undertakes annually. But the use of Schedule 7 drew public outrage once again in April 2023, when it was reported that a French publisher was arrested after refusing to hand over the passwords to his electronic devices.
The foreign rights manager for French publishing house Editions la Fabrique was approached upon his arrival at St. Pancras International, while en route to attend the London book fair. Among other things, he was questioned about his opinions of Emmanuel Macron and the Covid-19 pandemic.
When he refused to hand over his passwords, he was arrested.
“The real purpose behind Schedule 7 is mass intelligence gathering”
The charges against him have been dropped. In the meantime, however, the incident prompted a special report by the independent reviewer of terror legislation, Jonathan Hall KC.
He stated: “The problem with exercising counter-terrorism powers to investigate whether an individual is a peaceful protester or a violent protester is that it is using a sledgehammer to crack a nut.”
In the eyes of Rabbani, the sledgehammer is the point: “The real purpose behind Schedule 7 is mass intelligence gathering,” he says. “And so long as that remains an objective of the state, I don’t think we will see Schedule 7 powers being dismantled.”