Anthony Longden Column: New bill threatens source confidentiality
As I write, the Investigatory Powers Bill slithers its way through the Parliamentary process even while the country is preoccupied with all things Brexit.
Remember, if this Bill becomes law, the identity of your sources will be blown and the entire process of journalism undermined. It really is that bad.
There is still much to be concerned about with this bill, but it nevertheless sailed through its third and final reading in the House of Commons by 444 votes to 69 and is now before House of Lords for further scrutiny.
The powers used by the police, security and intelligence services, are currently spread across many separate pieces of legislation, all enacted at different times. The aim of the new Bill, therefore, is to pull everything together into one piece of legislation, creating a comprehensive and fully up to date framework governing the interception, storage and use of personal data.
Sounds reasonable enough given the troubled times in which we live, but disturbing problems emerge when you take a closer look at how a balance can be struck between national security and personal privacy.
There is widespread concern about the Bill’s far-reaching range of powers, not least of these the ability to conduct ‘data trawls’ of large quantities of information from ordinary people, the lack of adequate judicial oversight, and opportunities for misuse.
At the end of June, Labour peer Baroness Hayter, recognised the risk the Bill poses to the whole practice of journalism by undermining the anonymity and protection of sources.
Speaking during the first Lords debate on the Bill, she said: “…we need to refine the protection of journalists’ sources. We must give people the ability to speak without fear of identification. It would not be in the public interest for such risk to silence those we want to speak out.”
There was further heartening support from another Labour peer, Baroness Liddle, who said: “We need to deal with the issue of the protection of sources, because serious journalists get serious information from sources. We will cease to have the kind of free press that is important to our society if we are not in a position to give a guarantee of protection to sources to journalists in appropriate circumstances.”
Cross-bencher and former television producer Viscount Colville of Culross, felt that much more could be done to protection for journalists. He said: “I very much appreciate the powers in the Police and Criminal Evidence Act 1984 which allowed notification to journalists and media organisations of requests to access journalists’ notebooks so that they can respond to those requests.
“I would like the Bill to mirror those powers in some way and to extend that notification to cover some warrants to access journalists’ data so that they and the media organisations can make representations to protect their sources. I know only too well from my own experience and that of colleagues how important it is to guarantee protection for sources when uncovering cases of wrongdoing.”
He added that in many cases sources gave information to journalists only when they were convinced their identity would not be revealed. “I ask your Lordships’ House to do everything possible to ensure that this Bill guarantees their secrecy and allows journalists to explain to the judge the public interest reason for that secrecy to be continued. This need is reinforced by the many occasions when the authorities, and especially the police, secretly obtained journalists’ records.”
Organisations including the Society of Editors, News Media Association, and the Media Lawyers’ Association are continuing to lobby for changes to the Bill. These include the introduction of prior notification for journalists of applications to their communications data, the right to make representations before any decision is made, and the right to appeal – none of which feature in the proposed legislation at the moment.
One already infamous part of the Bill was Clause 71. This is the one that requires web and phone companies to record every website visited by every citizen of the UK for 12 months, and make this information available to police, security services and other public bodies.
This is shocking because, for the first time, it would make it explicitly legal for security services to acquire bulk communications data – like NHS health records – about all of us. While individual web pages would not be captured, the main domain name would be: e.g. in this case, the captured data would reveal you had looked at www.newsassociates.co.uk but not this specific page. Allegedly.
This statutory power allows the spooks to draw your online footprint. Do you really want them to be able to do that?
And by applying for a warrant, they would a legal mandate to bug your computer and phone. Companies would be compelled, by law, to assist them and even bypass encryption where possible.
If you consider the risk small or a price worth paying, then think again. Home Office figures show that in 2014, there were 517,236 authorisations for communications data from the police and other public bodies following 267,373 applications. Ministers authorised 2,765 interception warrants in the same year. The Guardian dug into this back in November 2015: https://www.theguardian.com/world/2015/nov/04/investigatory-powers-bill-the-key-points
Intercept warrants will need ministerial authorisation, and will then be assessed by a panel of judges, who can veto a warrant if they feel the powers are being abused.
Thanks to bitter previous experience, we know that powers are abused – wanton misuse of RIPA, police misapplication of terrorism legislation and even bugging a local newspaper reporter, for example – which is why we need all the safeguards we can get.
Journalism is all about talking to people, often confidentially. If those people no longer feel confident in sharing information with us in total anonymity, they will clam up, and the whole process will be undermined. People in positions of power will get away with wrongdoing or incompetence.
In the meantime we are going to have to place our trust in the Lords
“We have to distrust each other. It’s our only defence against betrayal.”
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, a London-based crisis handling and communications consultancy. He judges the annual UK national and regional Newspaper Awards.