ANTHONY LONGDEN COLUMN: European wranglings important for future of investigative journalism
While we are all preoccupied with the Brexit debate, Europe will play an important role in the latest battle over the troubled Investigatory Powers Bill, or Snoopers’ Charter.
In April, the European Court of Justice in Luxembourg is taking a forensic look at the highly controversial proposed legislation. Its decision will be binding on courts in the UK.
The key question is as fundamental as it gets: are the bill’s provisions legal?
The proposed law would bring in measures including mass surveillance systems of the kind first exposed by Edward Snowden, the former CIA employee who leaked disturbing details about the extent of global monitoring in 2013.
This is an issue for every journalist: if catch-all surveillance becomes a legal reality in the UK, it poses a serious threat to our sources’ confidentiality and our ability to do our job. What whistleblower is going to want to talk to a reporter who can no longer guarantee their identity will be protected?
It is a bald fact modern communications technology is not secure. Journalists now have to assume their email, telephone calls and movements can be tracked, and many who have to handle highly sensitive information routinely use methods that belong more to the 19th and 20th centuries than to the 21st.
This isn’t an affectation. In 2013, the Daily Telegraph reported that the Kremlin became so nervous about electronic data leaks that it returned to using typewriters in 2013.
A game of legislative ping-pong has been going on in Parliament for some years now. Various versions of the Investigatory Powers Act have been batted back and forth, amid fierce criticism from some politicians, lawyers and civil rights groups.
The government has been tediously obstinate in its attempts to make its bill law, despite a chorus of concern. Three Parliamentary committees have collectively proposed more than 100 changes; 200 senior lawyers wrote an open letter to the government via the Guardian saying that in their view the bill was not fit for purpose, and breached international surveillance standards.
When so many former judges, QCs, legal academics and other senior figures say something is so fundamentally flawed, we have to sit up and take notice.
The government bases its arguments on the very definition of ‘mass surveillance’. It doesn’t believe bulk interception of email and digital records counts.
GCHQ believes it can mollify opponents of the bill by saying it only carries out carefully chosen searches of data when there is a legal warrant in pursuit of terrorists or criminals, and that bulk interception is an essential first step in the process. We are expected to believe and accept it never reads other intercepted material caught in the digital dragnet.
The senior lawyers’ letter didn’t mince words. It said:
“First, a law that gives public authorities generalised access to electronic communications contents compromises the essence of the fundamental right to privacy and may be illegal. The investigatory powers bill does this with its ‘bulk interception warrants’ and ‘bulk equipment interference warrants’.
“Second, international standards require that interception authorisations identify a specific target – a person or premises – for surveillance. The investigatory powers bill also fails this standard because it allows ‘targeted interception warrants’ to apply to groups or persons, organisation or premises.
“Third, those who authorise interceptions should be able to verify a ‘reasonable suspicion’ on the basis of a factual case. The… bill does not mention ‘reasonable suspicion’ – or even suspects – and there is no need to demonstrate criminal involvement or a threat to national security.
“These are international standards found in judgements of the European Court of Justice and the European Court of Human rights, and in the recent opinion of the UN special rapporteur for the right to privacy. At present, the bill fails to meet those standards – the law is unfit for purpose.”
That United Nations ‘special rapporteur’ is Joseph Cannataci. He asked the UK government to “outlaw rather than legitimize” the bulk surveillance and hacking provisions included in the bill.
Former shadow home secretary, David Davis, and deputy Labour leader Tom Watson, originally mounted the European legal challenge against DRIPA, the Data Retention and Investigatory Powers Act 2014, and the case is being heard in conjunction with a Swedish case based on similar principles. The UK High Court has already ruled that DRIPA’s powers are inconsistent with EU law.
Davis, while accepting something is needed to replace 66 existing pieces of legislation on this issue, is deeply concerned about creeping surveillance laws and insists any legislation is carefully drafted to ensure it cannot be abused.
Former deputy prime minister Nick Clegg said he would not support the bill because he feared it was open to misuse. He added: “No other country in the world feels the need to do this, apart from Russia.”
The government also appears to have given insufficient attention to the enormous costs of mass surveillance. It could have taken the hint from Denmark, which scrapped similar plans when it became clear the cost of equipment alone would be equivalent to at least £105m.
Eric King, director of campaign group Don’t Spy On Us, views this as a killer fact. “The Government is trying to force Internet Service Providers to collect all of our internet connection records, but refuses to listen when they express concerns about the cost and feasibility of their proposals,” he said. “As in Denmark, the Government should commission an independent cost analysis to clarify the true cost of collecting Internet Connection Records. There is no evidence that collecting ICRs makes us safer.”
So, you could say there’s still quite a bit wrong with the Investigatory Powers Bill.
Fifteen European judges are now wrestling with this politically sensitive test case, and around a dozen EU states have made submissions. A final decision is expected after the EU referendum, but we may hear a preliminary opinion ahead of June 23.
Once the European Court has given its judgement, our Court of Appeal will then have to apply it to UK surveillance laws.
Then – perhaps – we should know where we stand
“Civilization is the progress toward a society of privacy. The savage’s noble existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”
Ayn Rand (1905-1982)
* Anthony Longden advises News Associates on journalism. He spent 20 years as editor and senior editorial executive in various regional companies in the UK, including Newsquest and Trinity Mirror.
He is a member of the Society of Editors parliamentary and legal committee, lobbying on behalf of the media industry on a wide range of issues.
He was an editorial member of the Press Complaints Commission, and sat on its reform committee.
He advises the SoE and Alder Media, a London-based crisis handling and communications consultancy. He judges the annual UK national and regional Newspaper Awards.