There is universal agreement across the media industry that the Investigatory Powers Bill puts journalistic sources at risk.
The government does not yet appear to understand the depth of concern about this, but we have a few weeks yet to make the case.
There is still considerable scope for amending the bill as it makes its way through the House of Lords (where Peers have already indicated they are sympathetic).
This campaign is eminently winnable and the stakes could hardly be higher. That’s why Press Gazette today launched a fresh Save Our Sources petition aimed at new Home Secretary Amber Rudd.
Earlier this week members of the House of Lords said they believed the bill could put journalists themselves in danger, by turning them into proxy information-gatherers for the state.
As it stands the bill would allow the state to access our computers, see our web-browsing history and even turn our phones into bugs.
This is not a fringe issue.
Every major UK newspaper and magazine publisher (via the News Media Association) agrees that this bill needs better protection for sources, as does the National Union of Journalists and the Society of Editors.
The industry has given short-shrift to Government assurances that the new powers won’t be abused because we were given exactly the same promises over the Regulation of Investigatory Powers Act back in 2000.
As with the IP Bill, we were told that state snooping powers under RIPA would only be used to investigate serious crime and terrorism.
But since then we have found the state’s definition of serious crime is rather different from the average journalist’s.
In fact, it can mean any unauthorised disclosure of confidential information to a journalist (which is potentially a Misconduct in Public Office offence and carries an unlimited prison sentence).
The police have made widespread use of RIPA to secretly find and punish lawful journalistic sources.
This happened most notoriously in the 2012 Plebgate affair, where the Met Police used RIPA to find out which officers told The Sun newspaper about the fact that a Cabinet Minister had been abusive towards the police.
The Met accessed the call records of The Sun newsdesk and of three reporters. It not only obtained the metadata around every call and text message received and sent, but used telecoms data to triangulate their movements.
There was never any suggestion that the officers concerned were paid for the information and the Crown Prosecution Service refused to prosecute them because it said they acted in the public interest. They were all sacked.
Cleveland police used RIPA in 2012 to find out how journalists got hold of a report alleging the force was institutionally racist.
Thames Valley Police used RIPA the car of Milton Keynes Citizen reporter Sally Murrer in 2006 to listen to her conversations with a police contact.
Also in 2006 Suffolk Police secretly accessed the call records of a reporter on the Ipswich Star after he asked a question about the re-opening of a rape investigation.
In 2015 Police Scotland used RIPA to find the source of a Sunday Mail story about failings in a decade-old unsolved murder.
In February 2015 the interception commissioner revealed UK police forces had secretly accessed the call records of 82 journalists to find their sources in the previous three years.
The IP Bill would update the ‘Save Our Sources’ law passed in March 2015 which said police requests to telecoms records that are made to identify a journalistic source should be signed off by a judge.
But the requests are still made in secret to telecoms providers with no opportunity for news organisations to represent themselves.
In common with the rest of the journalism industry we think protections in the IP Bill need to go further.
They need to apply to all the spying powers in the bill and news organisations should have the opportunity to represent themselves in court.
No-one wants to hinder the ability of the state to tackle serious crime. We just want to make sure these powers aren’t abused to target whistleblowers and those guilty of nothing more than sharing confidential information on a matter of public interest with journalists.
The petition’s full wording:
Confidential journalistic sources and whistleblowers are the bedrock of a free, open and democratic society.
But many will not risk providing information to journalists on matters of public interest unless their anonymity can be assured.
That is why Parliament and the courts have protected journalistic material against the chilling effect of disclosure. If investigating crime, the police must apply to a judge for an order to obtain journalistic material such as notebooks or video footage.
The media has the right to be heard and put the counterarguments. The judge decides whether the specific tests, including public interest, written into statute have been satisfied and whether and what order should be made.
The Investigatory Powers Bill will allow state surveillance of every step of a journalistic investigation in the digital world.
The powers allow the state to:
- covertly open up encrypted media databases of untransmitted or unpublished material and journalists’ own mobile devices
- view journalists’ communications records (who called who, when and where)
- turn reporters’ mobile phone into tools of surveillance.
Sources could be put at risk. Journalists could be put in danger by being seen as proxy agents of the state.
We are asking that the same protection for journalistic activities, information and sources should apply in the digital world as the physical one and that the Investigatory Powers Bill be amended.
All state agencies’ requests to use these powers in relation to journalistic activities should be decided by a judge.
There should also be a presumptive right for the media to make representations, so that the judge knows the counterarguments, which may be vital to the non disclosure of material that could reveal a source or endanger a journalist.
We also ask that more stringent tests be set out in the Bill with full weight given to the public interest in freedom of expression and protection of sources.