If the terrorists cannot be allowed to win, why is the State attacking our freedom?
Monday 19 January, 2014
The threat of terrorism has been a part of British life for half a century.
The Troubles in Northern Ireland left more than 3,500 dead, including the victims of bombings in Omagh, Birmingham, Aldershot, Guildford, Deal, Warrenpoint, Manchester, Eniskillen and Hyde Park, the Bloody Sunday shootings, and individual murders such as those of Lord Mountbatten, Airey Neave, Ian Gow and Ross McWhirter. Two soldiers who found themselves in the middle of an IRA funeral procession were dragged from their car and brutally despatched.
With every horror came the assertion "the terrorists will never win". Their objective was, we were told, to destroy the British way of life through fear. That could not be allowed to happen; there would be no negotiations with murderers, no payment of ransoms to kidnappers.
There was, of course, negotiation, which led to the Good Friday Agreement and a sort of peace.
There were also big changes in the British way of life. If you left a suitcase unattended or a car in the wrong place in the Seventies, you were liable to find on your return that it had been blown up.
Apart from the Troubles, acts of terrorism have killed fewer than 350 people in this country in the past 30 years - and most of those were the result of two incidents: the Lockerbie bombing of 1988 and the 7/7 bombings in London in 2005.
We are frequently told that we are at greater risk than ever before, that various plots that might have resulted in mass slaughter have been foiled by our security services, and that we must remain vigilant at all times.
We have allowed people to be detained for extended periods without trial, we have accepted the presence of CCTV systems in our town centres and on our roads, we subject ourselves to scanners and swabs and offer up our bags to be searched when we want to catch a train or a plane, go to a concert or visit a museum. We cannot even take a bottle of water from one side of an airport to the other.
The Charlie Hebdo murders in Paris two weeks ago brought another round of security reappraisals.
Britain has never experienced an attack such as that on the magazine's offices in which the killers were gunmen looking for specific people, rather than bombers striking at targets chosen for their publicity value.
This assault by a pair of thirtysomething brothers on three old men who drew pictures for a living and their colleagues was characterised in splash headlines as an attack on freedom, a war on democracy. It was probably nothing so grand, but it was certainly an attack on freedom of speech, and it led to the extraordinary sight of world leaders marching arm-in-arm through the streets of Paris at the head of a crowd of a million or two people proclaiming "Je suis Charlie".
How could this be? Heads of state and government leading a protest march over the deaths of 12 people? Ah, but remember this wasn't about 12 people. It was about that most sacred right: freedom of expression.
And how do our leaders propose to protect that freedom? By increasing the State's right to spy on us. The security services (among other public bodies) can already look at our phone and email records to see who we're talking and writing to. They can also, in certain circumstances, tap our phones, bug our offices and train a telescope on our bedroom windows. Now David Cameron wants to ban apps such as SnapChat and WhatsApp that allow the encryption of messages sent across the web, so that nothing is private.
The idea has not been well-received and it may in any event prove impossible to implement, but it does not bode well for freedoms that are already under attack in the name of national security.
Tomorrow is the final day of consultation on a new set of guidelines on the way the Regulation of Investigatory Powers Act is used, and in the present climate the chances of their being altered in the interests of public and personal liberty must be remote.
This law was pushed through by the Blair Government in 2000, going from its first appearance in the Commons to the statute book within five months. It was intended to give public bodies weapons to tackle terrorists and organised criminals who were using "modern" technology such as mobile phones and email.
It didn't take long for councils to start using the Act to justify spying on families for such trivial matters as when they put out their dustbins. That sort of behaviour was stamped on, but there are still about half a million requests to carry out some sort of surveillance operation under the Act every year.
One of those requests concerned the Sun political editor's mobile phone. Police checked Tom Newton Dunn's phone records to try to find out who had leaked the "Plebgate" story that led to the downfall of the government chief whip Andrew Mitchell. That investigation unveiled the whistleblowers in the case and cost them their jobs.
There is little public sympathy for journalists who demand special consideration when they get what is sometimes seen as a taste of their own medicine. In this case, however, it really matters. And not only for journalists; it matters for doctors, lawyers, accountants and other professionals - and for their clients.
After the Mid Staffs hospital scandal, this Government promised to protect people who spoke out about malpractice in all walks of life. But who will come forward about anything if their lives are going to be made a misery and their livelihoods put at risk?
It is essential that people are able to talk to journalists on matters of public interest without fear that their cover will be blown. It is essential that lawyers are able to speak to their clients, doctors to their patients without someone checking on when and where they had their conversations.
Shortly after Andrew Norfolk of the Times started writing about the systematic enforced prostitution of young girls in Rotherham, he was presented with a huge dossier showing that police, councillors and council officials had been aware of what was going on. When he wrote the next story on the back of that material, the council's response was to start an investigation - not into the abuse, but into the leaking of information.
It has become almost standard practice: a wrong is publicised - whether it's an MP playing Candy Crush or a consultant exposing hospital errors - and the first response of the authority concerned is "hunt the leaker".
Press Gazette reported in October that over the past five years the Metropolitan Police had instigated 300 internal leak investigations, most of them using RIPA. Last month it followed that with the news that five central government departments had conducted 60 such inquiries over the same period. This is not what the Act was designed for.
The key point in this overuse/abuse of the legislation by the police is that it requires only the signature of a senior officer for someone's phone or email data to be checked. This, as the Cameron clip above explains, is not about reading the contents - but if you're looking to blow a source you don't need to; the mere knowledge of who's talking to whom is enough
When it became known that Tom Newton Dunn's phone records had been checked, the acting Interception of Communications Commissioner promised an investigation, peers and the chairman of the Home Affairs Select Committee expressed outrage, and a petition set up by Press Gazette editor Dominic Ponsford - who has been in the vanguard of this fight - was signed by 1,650 people. Alan Rusbridger of the Guardian said that journalists needed to learn new ways of protecting their sources - such as learning encryption (much good may that do them if Cameron gets his way).
The Home Office responded by promising new guidelines.
The objective of the Press Gazette petition was modest: a requirement that police should obtain the permission of a judge, rather than one of their own officers, before accessing people's data.
But the new guidelines put forward by Theresa May do not include that provision - they merely require the police to "note" when the person whose records they are examining is in a professional working under conditions of confidentiality.
Today a letter signed by 100 editors, including every one of the national newspapers, has been presented to the Home Office asking it to amend the guidelines again to take that one step further.
This is not a case of bleating journalists, it is about protecting personal liberty - the very thing successive politicians have told us terrorists cannot be allowed to steal. Please add your voice to the campaign by contacting the Home Office before the consultation ends at 11.45pm tomorrow.
If it helps, the NUJ has produced a draft letter that can be copied and pasted into an email.
Privacy and trust is crucially important to the British public and our professions. We need to be assured that certain data will always remain confidential in all but exceptional and extreme circumstances.
The right to keep sources anonymous is the bedrock of investigative journalism. Without it, you cannot do your jobs. Without it, the corrupt and the crooked sleep easier in their beds. It’s a sacrosanct principle...
For centuries institutions, callings and professions have considered the confidentiality of certain communications to be sacred. I am thinking of the law, medicine, the church, parliamentarians and journalists and their oath, or obligation, to clients, or patients, or sources, or constituents or communicants.
RIPA... is not there for the police to go after the communications information data that journalists might have got totally properly as part of their profession. I think there should be a judge sign-off.
I have written to all Chief Constables and directed them...to provide me with full details of all investigations that have used RIPA powers to acquire communications data to identify journalistic sources.
Politicians say that terrorism laws should be used where relevant and proportionate. The police have used RIPA when it was neither. Journalism is not terrorism nor criminal.
See Press Gazette's stories here
Whistleblowing charity blog
Police media leak investigations
Nick Clegg calls for judicial authority
The case of Sally Murrer
Heroes and villains of 2014
We, the undersigned, believe that the Acquisition and Disclosure of Communications Data Code of Practice as drafted provides wholly inadequate protection for journalists’ sources.
The revelation that the Metropolitan Police and other forces have used the Regulation of Investigatory Powers Act to view the phone records of The Sun and its political editor and other journalists in order to identify and punish lawful police sources has caused widespread alarm across the journalism industry.
The new code appears to do very little which would stop a repeat of such abuse of RIPA.
The Act was intended for tackling serious crime such as terrorism but it is clearly being used by police in relation to relatively minor crimes.
The new code states: “Communications data is not subject to any form of professional privilege – the fact a communication took place does not disclose what was discussed, considered or advised.”
The mere fact a public official has contacted a newspaper is highly privileged information.
That an individual has contacted a lawyer or doctor tells us little. But the fact they have contacted a journalist identifies them as a source and exposes them to recrimination.
It is in everyone’s interest that the state recognises the over-arching importance of protecting the confidentiality of journalists’ sources.
Public sector whistleblowers will not come forward to journalists in future if law enforcement agencies have the power to view journalists’ phone records at will The new guidelines merely state that the degree of interference with privacy “may be higher where the communications data being sought relates to a person who is a member of a profession that handles privileged or otherwise confidential information (such as a medical doctor, lawyer, journalist, Member of Parliament, or minister of religion).
“Such situations do not preclude an application being made. However applicants, giving special consideration to necessity and proportionality, must draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of privacy, and clearly note when an application is made for the communications data of a medical doctor, lawyer, journalist, Member of Parliament, or minister of religion.”
The new guidelines also state that RIPA requests involving journalists can continue to be signed off internally at the agency concerned.
RIPA requests for journalists’ phone records should carry the same safeguards as already exist under the Police and Criminal Evidence Act when it comes to police requests for journalistic material and should be extremely rare.
RIPA requests involving the telecoms records of journalists (and so, also their sources) must require the approval of a judge who is best placed to balance the public interest in disclosure of the information versus the over-arching public interest in respecting the confidentiality of journalists’ sources.
The new Acquisition and Disclosure of Communications Data Code of Practice must explicitly prevent law enforcement officials viewing the phone records of journalists who are not themselves under suspicion of committing any crime.
The draft code only makes reference to “the degree of interference with privacy” and says nothing about the issue of state interference with press freedom. This is why a judge must consider the case for overriding source protection.
The code needs to balance the seriousness of the alleged crime against the public interest in protecting the confidentiality of all journalistic sources and potential whistleblowers.
The guidance needs to make it clear that a public official communicating information to a journalist without official approval (ie. a leak) cannot be sufficient justification for a RIPA telecoms request.
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