It transpires that when the Regulation of Investigatory Powers Act (Ripa) was being drafted no-one realised it could be used to access journalists’ communications and thus compromise their confidential sources.
One of those who helped to draft the act, Michael Drury, who was GCHQ’s director of legal affairs between 1996 and 2010, said journalism was barely considered.
Sir David Omand, a former GCHQ director who was permanent secretary at the Home Office between 1997 and 2000, agreed. He said: “I can confirm we didn’t talk about journalists”.
The revelations emerged at an Oxford University seminar on interception and the law in the digital age on Monday (9 February), reports the Bureau of Investigative Journalism (BIJ).
Drury told the audience that during the period of drafting attention was focused on privacy rights under Article 8 of the European Convention on Human Rights (ECHR), rather than the right to freedom of expression under Article 10.
The BIJ is currently challenging the British government in the European Court of Human Rights in connection with its surveillance activities.
It argues that journalists’ communications are inadequately safeguarded under Ripa because their sources may be identified from the data collected by the intelligence agencies.
Last week, a report by the Interception of Communications Commissioner, Sir Anthony May, found that the police had failed to give “due consideration” to Article 10 rights when applying to obtain communications data to identify journalistic sources.
The commissioner recommended that judges should approve communications data requests in cases where officers are seeking to discover journalists’ sources.
Drury said of May’s findings: “This is a learning curve for both the police and intelligence agencies”.
But Drury, who now works at the legal firm Burton Copeland, said it would be “foolhardy” to pass new legislation on interception before a decision had been reached on a series of cases challenging Ripa in the European court.
These cases, aside from the one brought by the BIJ, include two pursued by Big Brother Watch and Privacy International.
During the seminar, in which he emphasised that his opinions were personal, Drury also said that the intelligence agencies’ surveillance activities would have been “perfectly apparent” to anyone reading Ripa prior to the 2013 leaks by the National Security Agency whistleblower Edward Snowden. “The suggestion that the scales were lifted from our eyes is wrong,” he said.
See also Julian Huppert’s article, Journalists must be able to protect their sources.
Source: Bureau of Investigative Journalism
- This article was amended on 12 February 2015. It originally stated that the report by the Interception of Communications Commissioner was about police applications for “interception warrants”. In fact, the report was about applications to obtain communications data, ie who, when, where and how communications were sent and received, not to intercept communications, which would reveal what was said or written. This has been corrected.
