Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Snoops and Spooks – ‘Big Brother’ implications for journalists

An aerial image of the Government Communications Headquarters (GCHQ) in Cheltenham. By Ministry of Defence.
An aerial image of the Government Communications Headquarters (GCHQ) in Cheltenham. By Ministry of Defence.

Apart from the government, it seems nobody has anything good to say about the Investigatory Powers Act 2016, otherwise known as the ‘Snoopers’ Charter.’

And not even the present government seems very enthusiastic about the Law Commission’s ‘consultation’ document for a new Espionage Act to protect official data.

This threatens to reform all the Official Secrets Acts 1911 to 1989 with no public interest defence for either journalists or whistle-blowers, and a criminal offence carrying a maximum jail sentence of 14 years.

It would mean that any public official wanting to leak a story and the journalists receiving it would be treated in the same way as enemy spies.

It has attracted universal condemnation from the press, and media freedom NGOs such as Index on Censorship who say the proposed legislation is ‘a body blow to public interest journalism.’

In the face of headlines such as ‘This assault on whistleblowers exceeds even the draconian 1911 act’ from the Guardian and ‘Britain’s free Press has never been under threat like it is today’ from the Sun, Theresa May’s government has tried to deflect blame for the move on her predecessor David Cameron.

Shabby history of Official Secrets Act

The Official Secrets Act 1989 was introduced to abolish the notorious ‘Section Two’ offence that criminalized any non-authorized leaking of official information and the journalists receiving it.

That carried only a maximum sentence of two years. It criminalized describing the colour of the walls of civil service buildings, or the writing on government toilet paper.

It was discredited when juries refused to convict even when told to do so by trial judges.

This is what happened in the case of Ministry of Defence official, Clive Ponting, in 1985.

He had leaked information to the Labour MP Tam Dalyell on the sinking of the Argentine battleship, the Belgrano, during the Falklands War, .

In recent years the state has cunningly used the common law offence of misconduct in public office to resurrect the old ‘Section Two’ power under another name.

The careers of least three senior police officers were destroyed when they were arrested, under ‘Operation Elveden’ for simply briefing journalists on criminal investigations without any suggestion of payment.

The Investigatory Powers Act 2016 or ‘Snoopers’ Charter’ is now law

Journalists and everyone else will have to get used to the idea that 48 intelligence, police, and investigatory bodies have access to one year of anyone’s online, web and communications data at any time.

The bodies include the famous intelligence services, but also health service trusts, the Food Standards Agency and Information Commissioner.

The spooks at MI5, MI6 and GCHQ, and all of the country’s police forces now have the legal power to engage full content communications surveillance, and something known as electronic network exploitation.

That is effectively turning an individual’s computer, tablet, or smartphone into a covert surveillance device.

Intelligence experts have the ability to activate the microphone and camera on digital portable devices without the owner having any idea as well as using them as precise tracking mechanisms.

The UK and USA agreement on sharing intelligence information means that US spy agencies such as the NSA and CIA can check out everything stored and gathered on UK citizens.

Private Eye has observed: ‘Donald Trump now has access to more data on British citizens than he currently has on any of his own.’

Applications for confidential journalistic or journalist source data have to be approved by a Judicial Commissioner.

But Journalists have no rights to be informed about the applications or access to their information.

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 the proposed Espionage Bill.

The International League for Human Rights awards the 2014 Carl von Ossietzky Medal to Snowden, Poitras and Greenwald. By Michael F. Mehnert
The International League for Human Rights awards the 2014 Carl von Ossietzky Medal to Snowden, Poitras and Greenwald. By Michael F. Mehnert CC BY-SA 3.0

Protections are meaningless?

David Anderson QC, the Independent Reviewer of Terrorism Legislation says the Act is ‘a victory for democracy and the rule of law.’

Edward Snowden tweeted: ‘The UK has just legalised the most extreme surveillance in the history of western democracy. It goes further than many autocracies.’

The legislation does nothing to preserve or encourage the free-flow of journalist source information to public interest publication.

It is worse. It adds to an overwhelming chilling effect generated by the blatant and secret interception of journalists metadata over many years.

Public official journalist sources have no protection whatsoever.

The Judicial Commissioners will be operating as rubber stamps.

They certainly have no opportunity, recourse, or method to be informed of the case for either journalists or their sources before sanctioning the worst kind of state snooping imaginable.