The police, security services and many other public authorities can secretly request the telecoms records of any news organisation or journalist to find and punish their confidential sources.
We found this out yesterday when the Met Police closing report into Operation Alice was released.
Such powers have been available for years, but this is the first time Press Gazette has learned of them being used against journalists and their sources.
The Operation Alice report revealed that three police officers who directly, and indirectly, gave information to The Sun were identified after officers secretly obtained the mobile phone records of Sun political editor Tom Newton Dunn and the main Sun newsdesk telephone number.
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Newton Dunn refused to identify his source to police and told them “in my opinion this was an example of good faith whistleblowing”.
The police could have gone to court argue that the exposure of Newton Dunn’s source was in the public interest. They would have faced an uphill struggle because it is a staple of European law that there is an inherent public interest in protecting the confidentiality of journalistic sources.
But instead they simply made a secret request for Newton Dunn’s mobile phone records under the Regulation of Investigatory Powers Act 2000. This was approved, as required in law, by an ‘independent’ police officer. Then it was merely a case of finding out which telephone numbers could be linked to a member of Met Police staff.
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They also obtained a log of calls made to The Sun newsdesk and managed to deduce that one of the numbers came from a hospital where a person linked to a Met police officer worked. Again, this was done without the knowledge of The Sun or anyone at News UK.
The net result was that three police officers were tracked down and sacked.
The Met tried to prosecute them for corruption, but the Crown Prosecution Service refused to press charges because it felt a jury would judge there was a public interest in the disclosure of the information they imparted.
That information related to an incident on 19 September 2012 when police officer Toby Rowland was involved in an altercation with then chief whip Andrew Mitchell at the gates of 10 Downing Street.
In an email account of the incident written that day PC Toby Rowland said Mitchell told him: “Best you learn your fucking place. You don’t run this fucking government. You’re fucking plebs."
The officers who were present on the gates of Downing Street decided to make no complaint. Rowland simply made a note of what had occurred.
The Operation Alice report revealed that this was not the first incident involving Mitchell at the gates of Downing Street.
Other officers who got wind of the affair, it seems through office gossip, felt they wanted the public to know how a Cabinet Minister allegedly spoke to one of the the people who was charged with protecting him.
So word of the incident found its way to The Sun and the Daily Telegraph.
That’s how a free and democratic society works. If a Cabinet minister swears at a police officer in a public place journalists tend to hear about it and communicate that to voters.
Do we really want to be a country where the police and our other public servants are required to operate in total secrecy?
Let’s remember that none of these officers were paid any money and only one had any direct contact with a journalist.
There doesn’t seem to be any recognition on the part of the Met that there is a public interest in sources being able to speak discreetly to journalists. You only have to look at the hacking scandal, the Daniel Morgan murder and the revelation that police spied on the family of murdered teenager Stephen Lawrence to see that the Met is an organisation which might benefit from the odd whistleblower exposing things which have been covered-up internally.
Making it impossible for whistleblowers to speak confidentially to journalists will only encourage more cover-ups and scandals.
In the absence of an amendment being made to RIPA it seems that news organisations would be advised to find new secure means of public sector employees contacting them with stories – such as the Secure Drop system used by The Guardian.
According to the Interception of Communications Commissioner some 514,608 RIPA requests for communications data were made last year (mainly by the police, law enforcement agencies and the security services). Such requests are normally internally approved.
According to the Surveillance Commissioner's annual report permission has been sought under the Police Act 1997 once in recent years to use a surveillance device against a journalist.
Press Gazette will be asking the Met Police, the Association of Chief Police Officers, the Home Office, the Surveillance Commissioner and anyone else we can think of for further clarity on how often the police and other public authorities are using RIPA to spy on journalists.
In the meantime, public sector whistleblowers and journalists alike would be advised to proceeed with extreme caution.
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