Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Contesting the ‘world’s most invasive surveillance regime’

Liberty campaigning graphic for contesting the Investigatory Powers Act 2016- known as the ‘The Snoopers’ Charter.’

At the heart of the 2016 Investigatory Powers Act is the government’s belief that we do not own our communications data.

The information about who we contact, on which day and at what time, where and in what way belongs to private internet service providers and telecommunications companies.

That is why the legal access is a relationship between government and data processors; not the users.

There is nothing in the Act to explicitly declare that the content of a communication is our personal property, but perhaps that is implied.

The trick played on journalists and everyone else is that the police, intelligence agencies and any of the 48 state investigatory bodies given access powers in the 2016 legislation have the data map to that content should it be preserved on computer hard discs or any form of digital storage server.

It is the roadmap to finding the more detailed evidence if required.

US government whistle-blower Edward Snowden and Liberty say the Investigatory Powers Act is the most invasive surveillance regime of any democracy in the world.

The fear for all of us is that it introduces staggering state spying powers that give the government access to up to one year of everybody’s web histories, email, text and phone records.

The government says it makes us more safe and free from all the dangers of terrorism and other awful crimes.

The Dystopian Big Brother vista of doom conjured by privacy campaigners is an unnecessary and inaccurate exaggeration.

Ministers say IPA was intended to introduce transparency to state surveillance following Snowden’s revelations of unlawful mass monitoring of the public’s communications.

But Liberty’s legal experts say it simply legalises the practices he exposed – and introduces hugely intrusive new powers which undermine our privacy, free press, free speech, protest rights, protections for journalists’ sources and whistle-blowers and legal and patient confidentiality.

When it was passed in Parliament at the end of 2016 there was an atmosphere of shambolic opposition and a political climate reeling from the implications of the EU referendum.

The government was criticized for not providing any credible evidence that the extreme indiscriminate powers included in the legislation complied with European Union and European Human Rights law and were fully necessary to prevent or detect crime.

A public petition has called for its repeal with more than 200,000 signatures, but has not been debated by Parliament.

In January 2018, the English Court of Appeal ruled that near-identical powers in the Government’s previous surveillance law – the Data Retention and Investigatory Powers Act – were unlawful because they let public bodies access the nation’s internet activity and phone records with no suspicion of serious crime and no independent sign-off.

Twin towers of the European Court of Justice, in Kirchberg, Luxembourg. Image: Tercer. Creative Commons licence.

This ruling had applied an earlier judgment in the same case from the European Court of Justice (ECJ).

The Government has conceded that Part 4 of the new Act needs reform, in the light of these cases, but further intervention by the courts is not needed.

IPA not only gives state agency access to communications data on demand.

The law also allows the State to hack computers, phones and tablets on an industrial scale, and collect the content of our digital communications and records about those communications created by our computers, phones and other devices.

The scandal over Facebook’s leak of data belonging to 87 million social media users has heightened public sensitivity about the significance of personal data.

It is being likened to ‘the new oil’ or to coin another metaphor ‘the oxygen of the information age,’ meaning that while it is vital to life it is also very dangerous in its pure form especially when mixed with a burning substance.

The flame of an investigation will burn ever so more brightly with IPA access to a detailed picture of a person’s movements, contacts, habits and views.

The Act purports to provide safeguards for the protection of confidential journalistic information and journalist source data.

But these provisions are not equal to those offered by the Police and Criminal Evidence Act 1984 where independent judicial hearings have to take place with representation for the journalist and news publisher as parties to the applications.

The IPA system does not recognize that the journalist has a right to be party to the review.

The Act appoints a Judicial Commissioner to adjudicate applications and journalists have no rights to be informed about the applications or access to their information.

The Investigatory Powers Commissioner’s Office is now up and running under Sir Adrian Fulford with a plan to use around 15 current and recently retired High Court, Court of Appeal and Supreme Court Judges as Judicial Commissioners.

Everything will be conducted in secret with no public scrutiny at all and absolutely no due process of legal representation.

‘Protections’ for sensitive categories such ‘confidential journalistic material’ and ‘sources of journalistic information,’ are invalidated where the ‘information is created or acquired for the purpose of furthering a criminal purpose.’

Criminal activity is defined as a situation where an accused ‘who has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more.’

This means any public official trying to leak anything to a journalist will be furthering a criminal purpose because the maximum sentence is life imprisonment for misconduct in public office and will be 14 years for leaking info under a proposed Espionage Bill.

At the judicial review hearing held over three days at the end of February, the government’s QC James Eadie contended that the vast majority of communications data retained will never be accessed by the state because most people are not affected by police or other relevant investigations.

This is certainly not the case with professional journalists.

Under the old Regulation of Investigatory Powers Act 2000 scores, perhaps hundreds of journalists had their data secretly accessed with a sign-off from a senior police officer in the same force.

The lack of scrutiny in such oversight chimes ironically with a profession castigated during the Leveson Inquiry for ‘marking its own homework.’

When RIPA 2000 was debated in Parliament politicians assured the media industry its powers would never be used against journalists in leak inquiries.

The government lawyer told the High Court in February that accessing a person’s entire communications data history would require the most serious justification and ‘in reality the law does not permit vast, intrusive collection by the state of communications data.’

The memory of the Chartered Institute of Journalists is very long indeed and the feeling at the Institute is that may well be the government’s instruction as to intention now. The practice afterwards is what we have to fear.