NSA files – David Miranda launches high court challenge – live

My colleague Owen Bowcott will file his take on today's case shortly and you'll be able to read it here. Thanks for all the comments.

That's it from the court for today. I'll have more tomorrow – along with live coverage of the UK's intelligence and security committee hearing featuring the heads of MI5, MI6 and GCHQ.

Kovats is now addressing the question of whether the police were merely following MI5 orders:

In court, Steven Kovats QC, for the Home Office, is addressing the issue of whether schedule five of the Terrorism Act ought to have been used against Miranda, rather than schedule seven.

(Ie using schedule five.)

Reuters quotes from a statement submitted to the court from Oliver Robbins, the UK's deputy national security adviser:

When it became apparent that Mr Miranda would be returning to Brazil via Heathrow airport, the Security Service [MI5] had a national security duty to establish the nature of Mr Miranda's activity, to gain an insight into what, if any, UK, classified material Mr Miranda was carrying

Carl Gardner reports Lord Justice Laws referring to the European convention on human rights:

Matthew Ryder, Miranda's QC, has now finished his initial submission.

Steven Kovats will speak next for the home secretary.

Here Alan Travis writes more about schedule seven of the Terrorism Act:

The schedule seven powers are extremely widely drawn, allowing police to stop and detain individuals for up to nine hours to determine whether they appear to be involved in terrorism.

There is no need for the officers to have any grounds to suspect the person stopped is involved in terrorism or any other criminal activity. There is no right to silence ...

The home secretary, Theresa May, has proposed a series of limited reforms to schedule seven, including improving the right to access to a solicitor for somebody who has been detained.

Here are two stories you may be interested in.

Whistleblowers should be given greater protection to allow them to give evidence to parliament as part of a major overhaul of the oversight of Britain's intelligence services, Labour has said. As Nicholas Watt reports:

On the eve of the first joint parliamentary appearance by the heads of MI5, MI6 and GCHQ, the shadow home office minister, Diana Johnson, called for a reform of the intelligence and security committee (ISC) to encourage whistleblowers to give evidence.

Johnson, a former minister in Gordon Brown's government, outlined Labour's plans to reform the oversight of the intelligence agencies as the ISC prepares to question Andrew Parker, the director general of the Security Service (MI5); Sir John Sawers, the chief of the Secret Intelligence Service (MI6); and Sir Iain Lobban, the director of GCHQ.

The committee, chaired by the former Tory foreign secretary Sir Malcolm Rifkind, is expected to question the intelligence heads on Thursday about the impact of the leaking of the NSA files by American whistleblower Edward Snowden. The NSA files include details of the Tempora programme, which gives GCHQ access to the network of cables that carry the world's phone calls and internet traffic.

Johnson said that the ISC, which is technically a committee of parliament established by the Intelligence Services Act 1994, should be turned into a select committee of the House of Commons to afford greater protection to witnesses.

A British engineer who works on anti-hacking systems at Google has furiously accused the UK and US spying agencies of "industrial scale subversion of the judicial process" by tapping the company's internal networks, reports Charles Arthur.

Mike Hearn, who says he worked for two years on the networks that replicate Google data between its different computing centres, says that "GCHQ [the British surveillance centre] turns out to be even worse than the NSA [the US National Security Agency]". He added that he joined an American colleague, Brandon Downey, "in issuing a giant fuck you to the people [at the NSA and GCHQ] who made these slides".

In court, Ryder has argued that it would have been more appropriate for the police to have used schedule five of the Terrorism Act rather than schedule seven.

The Press Association has more details from this morning's hearing. The news agency quotes Miranda's QC Matthew Ryder as saying:

The exceptional nature of this case insofar as it involves the use of schedule seven [of the Terrorism Act] powers to obtain highly controversial journalistic material, should not be underestimated.

The use of the power to take journalistic material from Miranda "appears to be unprecedented", said Ryder.

In written submissions before the judges opposing Miranda's claim, Steven Kovats QC emphasised on behalf of the home secretary, Theresa May, that "disclosure of all the material stolen by Mr Snowden would be gravely damaging to the national security of the United Kingdom" and that "such disclosure would endanger lives".

May, "pursuant to her duty to protect national security, had a duty to act against that risk".

Kovats argued that May's national security duty to establish the nature of Miranda's activity was "consistent" with use by the police of schedule seven.

If publication of material obtained by Snowden was capable of being an act of terrorism - and the home secretary "submits that it is" - then "seeking to establish the nature of the claimant's activity" was both meeting the home secretary's national security duty and discharging the police's schedule seven function "of seeking to determine whether the claimant was or appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism".

TACT is the Terrorism Act and PACE is the Police and Criminal Evidence Act.

Back in court, Carl Gardner summarises an exchange between Mr Justice Ouseley and Miranda's QC Matthew Ryder:

Al Gore, the former US vice-president, has predicted that American politicians will rein in their intelligence agencies, the Canadian Press reports.

Gore called the level of surveillance revealed by Snowden "outrageous" and "completely unacceptable".

“He has revealed evidence of what appears to be crimes against the Constitution of the United States,” he said.

Carl Gardner tweets from the court:

(PACE is the Police and Criminal Evidence Act 1984)

If you turn to page 3 of the police's grounds for resisting Miranda's claim, you can see the police claim article 10 of the European convention on human rights (codified in Britain in the Human Rights Act) – freedom of expression – did not apply in this case because the police did not "know or believe" Miranda had the material he had on him for the purposes of journalism. The document states:

The exercise of powers in this case did not engage either Article 10 ECHR or the protections accorded to journalistic material under Schedule 5 to TACT [Terrorism Act 2000] because (a) the MPS did not know or believe that Mr Miranda had acquired the material for the purposes of journalism; and (b) Mr Miranda did not when questioned claim to be a journalist or to be carrying the material on behalf of anyone else who was a journalist or to have acquired the material for the purposes of journalism.

In his notes to the document, Carl Gardner of the Head of Legal blog writes:

It'll be interesting to see how closely the judges scrutinise this. Can the police really not have at least believed Miranda had acquired this material for use in journalism, perhaps by someone else? This seems on the face of it an unreal claim, if they knew enough about Miranda to stop him.

Carl Gardner is tweeting again from the hearing:

The Miranda hearing has just resumed.

On his Head of Legal blog, Carl Gardner has posted the Metropolitan police's grounds for resisting David Miranda's judicial review claim. Gardner writes:

The police say (para. 28) there was not enough information to make an arrest because they did not know David Miranda’s role – but also argue that even had there been, that would not have prevented the use of Schedule 7. They say they were initially of the view there was not enough information to stop and question David Miranda, but that the Security Services ultimately persuaded them of the case for doing so, set out in the final draft of the “Port Circulation Sheet”.

They say the Security Service did want to retrieve the material they thought Miranda was carrying – a claim which necessarily casts some doubt on whether the stop was influenced by purposes other than simply determining whether Miranda was involved in terrorism. The police therefore emphasise more than once that they took an independent view, and did not “unthinkingly execute” a Security Service plan.

He adds:

What’s interesting about the police’s defence is the factual detail given in support of the argument that the stop was for a proper purpose. There’s clearly enough here on which the claimants’ lawyers can mount a serious argument that the Security Service’s wish to get their hands on Miranda’s data influenced and “infected” the police’s action with the taint of an improper purpose.

While the human rights arguments may attract attention, it’s this strand of the case on which the claimants stand a chance of winning, and on which in my view the case will turn.

The hearing has now broken for lunch. It will resume at 1.55pm.

The Press Association quotes Miranda's QC, Matthew Ryder, as telling the judges:

This claim is about the use of counter-terrorism powers, that can only be used at ports and airports, to seize journalistic material.

Ryder argued that the powers were "exercised for an improper purpose" - that the "dominant purpose" of the examining officers was not to determine whether he was a person involved in the commission, instigation or preparation of acts of terrorism, but to "assist the Security Service [MI5] in accessing material in the claimant's possession".

Exercise of the powers was also unlawful, he said, as that was a "disproportionate interference with his [Miranda's] right to freedom of expression".

Ryder said that at the relevant time Glenn Greenwald was working for the Guardian and Miranda was "assisting Mr Greenwald's journalistic work".

The Associated Press quotes Ryder as having said:

If the court finds that such a power was used proportionally in seizing journalistic material in this way, we ask court then to consider if schedule seven is compatible with fundamental rights in particular, the right to freedom of expression. This case illustrates vividly why it is not compatible.

In the high court, Carl Gardner reports:

In the House of Commons, Tory MP Sir Peter Tapsell just asked David Cameron about oversight of the security services. Tapsell asked:

May I ask the prime minister whether he is of the opinion that the intelligence services of some countries may be dangerously out of political control? And is he confident that he is kept fully informed of all sensitive external initiatives taken by our services?

The prime minister replied:

I don't want to break the rule of not commenting on intelligence issues but to answer his question as directly as I can I've looked very carefully at the governance that we have in the UK for our intelligence services, the work that of the intelligence commissioner, the work of the intelligence and security committee, and the oversight, particularly by the home secretary and the foreign secretary, and I think we have a good system in our country.

And to answer his question, yes, I'm fully involved in these decisions.

Gill Phillips, the Guardian's head of legal, tweets:

Article 10 of the Human Rights Act refers to freedom of expression. It reads:

Article 10

Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Glenn Greenwald has tweeted to ask this:

More from Carl Gardner. Laws LJ is Lord Justice Laws.

Owen Bowcott sends this from the high court:

A coalition of 10 media and free speech organisations - including Liberty, Index on Censorship and the International Federation of Journalists - have intervened to express concerns about the use of anti-terror powers against journalists.

Before today's hearing Gwendolen Morgan, Miranda's solicitor from the law firm Bindmans, said: “This unprecedented use of schedule seven to detain our client must be seen against the important investigative journalism with which he was assisting.

"These publications have revealed to the world the covert surveillance of millions of ordinary citizens, businesses, and world leaders alike. The public have a right to know the extent to which various secret services monitor what they previously thought were private emails, phone calls or online profiles.

"To ride roughshod over fundamental constitutional freedoms and ‘shoot the messenger’ is to perpetrate a further injustice to a public who have the right not to be kept in the dark.”

Anna Mazzola, a solicitor on Miranda’s legal team, added: "If [the judges] find in the government’s favour, it will send a worrying message as to the protections that the UK affords to journalists and those working with them.”

In a witness statement filed with the high court, Miranda said:

I am aware from my work alongside the journalists that those authorities do not want any aspect of the Snowden material to be made public. I also appreciate that there will be some who agree with that view. But there are many others who feel strongly that careful, responsible selections of information can and should be properly published in the public interest.

I believe the schedule seven powers were wrongly used against me and I hope this court will make that clear. If the authorities are allowed to use counter-terrorist powers in this way the chilling effect on freedom of expression both in the UK and around the world is substantial.

They had always intended to detain me for some time, because their primary purpose was to access material I was carrying rather than to investigate or question me about terrorism.

Miranda's partner, Glenn Greenwald, said in a separate court statement:

Responsible publication of sensitive material is not an act of terrorism. And those involved in such work – the journalists and those who assist them – are not involved in terrorist activity.

It is irrational to suggest that sensitive material in the hands of responsible journalists and their staff should be equated with sensitive material in the hands of terrorists.

Such suggestions reveal a disturbing misunderstanding of the work that journalists do.

Lucy Manning of ITV is also tweeting from the hearing. She posts:

Barrister Carl Gardner of the Head of Legal blog is tweeting the hearing. Here are some of his key tweets.

David Miranda was questioned under schedule seven of the Terrorism Act 2000. Here is the full text of that schedule.

This is what it says about who can be detained under these powers:

2 (1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(2) This paragraph applies to a person if—

(a) he is at a port or in the border area, and

(b) the examining officer believes that the person’s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland [F1 or his travelling by air within Great Britain or within Northern Ireland].

(3) This paragraph also applies to a person on a ship or aircraft which has arrived [F2 at any place in Great Britain or Northern Ireland (whether from within or outside Great Britain or Northern Ireland).]

(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

3 An examining officer may question a person who is in the border area for the purpose of determining whether his presence in the area is connected with his entering or leaving Northern Ireland.

4 (1) A place in Northern Ireland is within the border area for the purposes of paragraphs 2 and 3 if it is no more than one mile from the border between Northern Ireland and the Republic of Ireland.

(2) If a train goes from the Republic of Ireland to Northern Ireland, the first place in Northern Ireland at which it stops for the purpose of allowing passengers to leave is within the border area for the purposes of paragraphs 2 and 3.

5 A person who is questioned under paragraph 2 or 3 must—

(a) give the examining officer any information in his possession which the officer requests;

(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity;

(c) declare whether he has with him documents of a kind specified by the examining officer;

(d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.

6 (1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may—

(a) stop a person or vehicle;

(b) detain a person.

(2) For the purpose of detaining a person under this paragraph, an examining officer may authorise the person’s removal from a ship, aircraft or vehicle.

(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.

(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.

The reference to section 40(1)(b) is to another part of the Act which explains what "terrorist" means in this context. It reads:

40 Terrorist: interpretation.

(1) In this Part “terrorist” means a person who—

(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

(2) The reference in subsection (1)(b) to a person who has been concerned in the commission, preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation or instigation of acts of terrorism within the meaning given by section 1.

Owen Bowcott adds:

At the start of the hearing lawyers for the Home Office said they accepted that among items examined by police there was journalistic material.

Steven Kovats QC, for the Home Office, told the court: "We now do not deny that amongst material that Mr Miranda was carrying is journalistic material ... material that has been worked upon by a journalist with a view to publication."

He added: "We do not understand that raw Snowden data is journalistic material."

My colleague Owen Bowcott has written more about the David Miranda hearing here. He writes:

Miranda's lawyers claim that the Metropolitan police misused schedule 7 and that his detention was a violation of his human rights. They have sought information about why Miranda was stopped and why his laptop, phone and electronic equipment were seized.

The legal action is against both the home secretary and the commissioner of the Metropolitan police. Lawyers for both the police and Home Office argue the Brazilian was stopped because of concerns about national security and terrorism.

A final draft of the police's internal port circulation sheet (PCS), which formally set out the reasons for Miranda's detention, said that "intelligence indicates that Miranda is likely to be involved" in espionage activity that had the potential to "act against the interests of UK national security". Disclosure of the material he was carrying, it said, fell within the definition of terrorism.

The PCS document, drawn up in consultation with the intelligence services, also said: "We assess that Miranda is knowingly carrying material, the release of which would endanger people's lives.

"Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under schedule 7."

The hearing is expected to last two days.

Welcome to our hub for all Edward Snowden, NSA and GCHQ-related developments around the world, as controversy over revelations leaked by the whistleblower continue to make headlines. As arguments rage over how much of our day to day life should be monitored in the name of security, we'll be tracking the growing global debate about privacy in the digital age. We'd like to know what you think about the whole NSA story, what you're worried about – and any new areas you'd like to read more about.

Good morning. Here are today’s headlines:

• David Miranda, the partner of former Guardian journalist Glenn Greenwald, today launches a high court challenge over the legality of his nine-hour detention at Heathrow under anti-terror laws in August. Miranda was held and questioned under schedule seven of the Terrorism Act 2000. His lawyers are arguing his detention for the maximum period allowed was a misuse of schedule seven and breached his human rights. Miranda had nine items, including his laptop, mobile phone, memory cards and DVDs, taken from him while detained. He was stopped while changing planes on a journey from Berlin to Rio de Janeiro where he lives with Greenwald, one of the Guardian’s lead reporters on its initial reports on former NSA contractor Edward Snowden’s revelations. In Berlin he was visiting Laura Poitras, a filmmaker who had also worked with the Guardian on the first Snowden revelations. High court judges have already ruled that the material seized from him could only be examined for national security purposes and the protection of the public, and no other. My colleague Owen Bowcott will be in court. 

• A US Senate panel approved its annual authorisation of funding for intelligence operations on Tuesday, including measures to increase spy agencies' ability to prevent leaks of classified information like those by Snowden. The US Senate intelligence committee voted 13-2 to approve the 2014 Intelligence Authorization Act, which authorises intelligence funding to counter terrorist threats, prevent proliferation of weapons of mass destruction and conduct covert actions around the world.

• The British ambassador in Berlin was called in for a meeting at the German foreign ministry on Tuesday to explain allegations that Britain had been using its embassy to carry out covert electronic surveillance on Angela Merkel's government.

• Australia's ambassador to Indonesia may be summoned to answer questions before a parliamentary commission amid growing anger in Jakarta over spying allegations. The deputy chairman of the Indonesian parliament's Commission I, which has responsibility for defence, foreign affairs and information, has also backed calls for a review of cooperation between Jakarta and Canberra on various policy fronts, including people smuggling and security. On Monday Indonesian foreign minister Marty Natalegawa labelled Australia's response to complaints that its embassy was used to collect data and eavesdrop on Indonesian interests as unacceptable. The complaints arose following stories based on documents leaked by Edward Snowden.

• Revelations about the scale of US spying on the internet have badly damaged the country's negotiating power in international talks on cyberspace regulation and law enforcement, analysts and industry leaders said at a conference on Tuesday. Disclosures by Snowden about the vast scale of the intelligence agency's data collection also are undermining US efforts to maintain the internet as an entity loosely governed by a mix of national, private and nonprofit forces. "We're losing leverage internationally" to China, Russia and other countries that want to give more authority to the United Nations and governments, Hoover Institution professor Abe Sofaer said at the fourth annual meeting on international cybersecurity cooperation held by the EastWest Institute. "It's terrible."

I'll have all this and more here throughout the day.