Investigatory Powers BillMuch has been written already and no doubt will continue to be written about the Investigatory Powers Bill.  It was presented to the House of Commons by the Home Secretary, Theresa May, in November and is currently at the committee stage.

Earlier this week, tech giant Apple, in a submission to the Parliamentary committee scutinising the Bill, expressed “major concerns” about it and called for wholesale changes before it is passed. Amongst a number of concerns, Apple told the committee that passages in the Bill could give the government the power to demand Apple alters the way its messaging service, iMessage, works. They said this would weaken encryption and enable the security services to eavesdrop on iMessage.

From the more traditional media’s perspective, the Bill also gives rise to some serious concerns.  This first part will look at the existing position under the Police and Criminal Evidence Act 1984 (“PACE”) and the Regulation of Investigatory Powers Act 2000 (“RIPA”).  Part 2 will focus on the deficiencies in the bill from a journalism perspective.

Following the Guardian’s publication of the Snowden revelations, the UK has at times seen a binary debate about the competing public interests of privacy and security, and the legality of the intelligence agencies’ activities which the Snowden documents exposed

Legal protections for journalists and their sources

The protection of journalistic material, sources and the legitimate activities of journalists is vital to a free press. Journalists’’ ability to protect their sources is in the public interest. If sources think they can be identified they will be reluctant to pass on information or to take the risk of disclosure, dismissal or prosecution. Journalistic material must be protected and secure, to enable newspapers to act in the public interest. This is vital to ensuring continual oversight and accountability of the public and private institutions that influence the lives of citizens in the UK.

Any order requiring any sort of journalistic material to be handed over to the state engages the right to freedom of expression of publishers and broadcasters under Article 10 of the European Convention on Human Rights (ECHR) and will amount to an interference for the purposes of Article 10 (see eg Handyside v United Kingdom and Tillack v Belgium). As far as sources are concerned, both UK and Strasbourg cases have recognised the important function served by journalists’ ability to protect their sources (Goodwin v UK, Mersey Care NHS Trust v. Robin Ackroyd, Financial Times v United Kingdom, Sanoma v. The Netherlands, Telegraaf Media Nederland Landelijke Media B.V. v. The Netherlands and Nagla v. Latvia).

The current legislative framework in the UK – specifically PACE and the Terrorism Act 2000 – recognises this and sets out a number of protections to protect journalism and safeguard the right to freedom of expression.  The right to a fair hearing (Article 6 ECHR) is also engaged by applications to obtain material which might reveal journalists’ sources, and cases have emphasised the crucial importance of the media being given the opportunity to make informed representations at an inter partes hearing before their material is accessed or obtained. Crucially, the existing provisions in PACE enable journalists and media organisations to make representations to a judge against a police warrant seeking the disclosure of journalistic material.

Poor track record of the UK authorities

In the UK, journalists have been spied on, their phone records have been secretly obtained and examined and their communications have been seized. At the end of last year, The Interception of Communications Commissioner’s Office (“IOCCO”) held an investigation into the police use of RIPA to find journalistic sources.

When published in February 2015 [pdf], it revealed that 19 forces had used RIPA in this way to obtain the records of 82 journalists over a three-year period. Overall, there were 105 journalists at the centre of leak investigations reported to IOCCO, with 78 per cent having their own records obtained. Some 19 of the 105 were listed as working in the local/ regional press.

The first case of a police force secretly obtaining journalistic phone records to find sources emerged in September 2014, when, the Metropolitan Police admitted to obtaining Sun phone records to find the source of its Plebgate story. Subsequently, it was revealed that the Kent/ Essex, Suffolk and Thames Valley forces had used RIPA in similar circumstances. Cleveland Police recently emerged as the fifth force to have used RIPA to obtain journalistic phone records to identify a source.

Earlier this month, the Interception of Communications Commissioner, Sir Stanley Burnton found that [pdf] Scottish police had breached the most recent set of rules by failing to gain judicial approval for five applications for communications data, which aimed either to find a journalist’s source or obtain the communications of those suspected of having acted as intermediaries between a journalist and a suspected source.  He was also satisfied that the applications failed to satisfy the requirements of necessity and proportionality, or to give due consideration to Articles 8 or 10 ECHR.

Most recently, in December 2015, in the case of NGN v Commissioner of Police the Investigatory Powers Tribunal ruled that the Metropolitan police had broken the law when it secretly obtained the phone records of one of three of the paper’s reporters behind the ​Plebgate story. It ruled that the Metropolitan Police had breached the human rights of three reporters when it pulled their phone records in its pursuit of the Plebgate mole. It also found the police had unlawfully secretly accessed one reporter’s phone records. (The IPT also held that the police had acted lawfully in relation to accessing other phone records because sight of these phone records, was deemed “necessary and proportionate” because they were central to a criminal investigation.)

In November 2014, in the cases of Belhaj & Boudchar v Security Service and others, the UK Government admitted intercepting legally privileged material. In June 2015, in a legal action brought by Amnesty International, Liberty and others against the UK Government, it was found that GCHQ had acted unlawfully in handling intercepted communications data, when it was revealed that two human rights organisations, including Amnesty International, had been targeted.

In February 2015, the Investigatory Powers Tribunal held that GCHQ acted unlawfully by accessing millions of private communications, as collected in bulk in the US, prior to December 2014.

The Davis and Watson legal challenge and appeal has scrutinised bulk retention of (and access to) communications data and its relationship to the British public’s right to respect for private life and protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights. The Court of Justice of the European Union (CJEU) is currently reviewing the case for a final determination of the issues.

In addition to the plethora of legal challenges, earlier this year three independent reviews of the UK investigatory powers regime questioned the existing legislation and intelligence and police practices. These reviews overwhelmingly demonstrated the need for more transparency, scrutiny, and oversight.

The reviews, by the Intelligence and Security Committee of Parliament, the Independent Reviewer of Terrorism Legislation, David Anderson QC, and the Royal United Services Institute, all found that the current legal framework was overly complex and disjointed and made a number of significant recommendations, particular around clarity, transparency and oversight.

Gill Phillips is the Director of Editorial Legal Services at Guardian News & Media