BY RACHEL OLDROYD
THE BUREAU OF INVESTIGATIVE JOURNALISM
The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance.
The Bureau’s application was filed with the European Court of Human Rights on Friday. If the court rules in favour of the application it will force the UK government to review regulation around the mass collection of communications data.
The action follows concerns about the implications to journalists of some of the revelations that have come out of material leaked by Edward Snowden.
These have made it clear that by using mass surveillance techniques and programs such as Tempora government agencies can not only collect, store and scrutinise the content of electronic communications but also analyse masses of metadata – the details about where digital communications such as emails originate and the subject area of those communications.
Gavin Millar QC, who is working on the case with the Bureau, believes UK authorities are routinely carrying out such data collection and analysis and says this enables a sophisticated picture to be developed of a journalist’s or organisation’s network of contacts, sources and lines of enquiry as well as materials, subjects and persons of interest to them.
This understanding could jeopardise sensitive investigations as journalists can no longer operate with any sense of confidentiality either pre- or post publication or offer any level of anonymity to their sources.
The Bureau’s Christopher Hird says: “We understand why the government feels the need to have the power of interception.
“But our concern is that the existing regulatory regime to control the interception of communications data – such as phone calls and emails – by organisations such as GCHQ does not provide sufficient safeguards to ensure the protection of journalists’ sources, and as a result is a restriction on the operation of a free press.”
The collection of data by authorities is governed in the UK by the Regulation of Investigatory Powers Act, known as RIPA. This is primarily focused on internal communications.
Many of the investigations undertaken by Bureau journalists involve foreign sources and stories, which are more vulnerable to interception as RIPA does not provide the same safeguards as it does for internal communications.
The Bureau is working with lawyers from Doughty Street chambers and law firm Leigh Day, who have advised that there is little protection or rigorous scrutiny provided by current UK legislation for these “external” communications.
Conor McCarthy, a barrister with Monckton chambers who is also working on the case, explains: “Without rigorous and effective legal safeguards, it is plain that the use of these powerful technologies may now fundamentally undermine journalistic free expression in a way that could not previously have been envisaged.”
Although the case is focused on communications with sources outside the UK, any ruling in favour of the Bureau could have implications beyond journalists’ communications with foreign sources. As virtually all electronic communications involve a server based outside the UK, it is possible that government agencies class all communications as “external communications” making them just as vulnerable to unregulated scrutiny.
Communications can include emails, phone calls as well as the use of Dropbox, Google docs and communications platforms such as Skype.
Gavin Millar QC says: “Police misuse covert RIPA powers to get journalists’ metadata – and so identify sources – routinely now. This circumvents the rights of a journalist to protect a source and to a hearing before a judge before any order is made to disclose such information.
“The sheer volume of data being harvested by GCHQ under RIPA means that confidential journalistic material is also being covertly accessed and analysed by security and intelligence all the time. Again sources are being identified – but on a much larger scale.
“Yet there is no word in RIPA or the government’s code of practice under it about these key journalistic rights. The UK simply flouts the Convention.”
If the ECHR decides there is inadequate protections for legitimate journalistic communications the UK government will be ruled to be in breach of the European Convention of Human Rights and will be forced to respond.
Rosa Curling at Leigh Day says:
“Edward Snowden’s revelations about the mass scale interception, collection, storage and analysis, by the UK government authorities, of emails and metadata sent between UK and non-UK servers fundamentally undermines the ability to operate a free press in this country.
“A fundamental precondition to press freedom in any democratic society is journalistic confidentiality. Journalists must be able to safeguard their sources and materials and keep information confidential until such time as they consider it appropriate and/or safe to publish it.
“The Tempora and other covert programmes disclosed by Snowden last year reveal that this key principle is currently being breached by the UK government. We have advised our client that the government’s failure to protect journalistic confidentiality is unlawful and an application to the European Court in Strasbourg has now been lodged.”