JOURNALISTS BEING UNLAWFULLY SPIED ON, COURT HEARS

• Lack of safeguards on mass surveillance means journalistic material at risk, Liberty says
• Court told lawyers also lack protection, while powers to spy on general public still unacceptably wide

Human rights organisation Liberty is back in court this week to challenge mass surveillance powers used by state bodies to spy on the UK population.

The Court of Appeal will today (10 May) hear how bulk powers under the Investigatory Powers Act, also known as the ‘Snoopers’ Charter’, violate the rights to privacy and freedom of expression.

Wide-ranging surveillance powers in the Act mean that journalists, lawyers and the general public are at risk of having their calls, text messages, internet history and other data collected and stored by the police and security services, regardless of whether they have done anything wrong.

Liberty will argue that there are insufficient safeguards in place to limit the use of these powers, which is particularly concerning in relation to the confidential work and communications of journalists and lawyers. Ahead of today’s hearing, the Government has already conceded that the Act is unlawful and needs to be amended to tighten protections for journalists.

The National Union for Journalists (NUJ) is intervening in the case and will warn the Court that the Act threatens journalistic communications and the right of journalists to protect sources – putting at risk the ability of journalists to report public interest stories.

The appeal is the next stage in Liberty’s long-running case against the Snoopers’ Charter, and challenges several different earlier rulings in the case [1].

Liberty will argue that the Investigatory Powers Act is unlawful because:

It does not protect journalistic and watchdog materials:

• The Act does not require state bodies to get independent authorisation before carrying out searches on or storing journalistic materials in all the circumstances required by the European Court of Human Rights. This includes, for example, whenever search terms connected to journalists are used, and if it is likely that journalistic material will be selected (even if that is not the intention).
• Liberty says this leaves communications between journalists and their sources and other confidential journalistic material at risk, and undermines the free press which is central to our democracy.
• The Government has conceded that the Investigatory Powers Act breaches freedom of expression by failing to provide the prior independent authorisation safeguard for journalistic materials. But Liberty will argue that the unlawfulness of the Act in relation to journalists goes further than what the Government has conceded.

It does not protect lawyer-client communications:

• Similarly, there is no requirement in the Act for state bodies to get independent authorisation before carrying out searches on or storing lawyer-client communications in all the circumstances required by the European Court of Human Rights.
• Liberty says this undermines lawyer-client confidentiality, and ultimately the ability of people to bring legal cases which are in the public interest.

It does not protect the UK population:

• Liberty says the Act’s bulk powers allow for such a large amount of data to be accessed and stored that the powers fall under the legal definition of ‘general and indiscriminate’ powers. This means they require certain safeguards which they currently lack, according to Liberty.
• One specific power under the Act – known as ‘bulk personal datasets’ – allows state bodies to collect bulk data on millions of people, the majority of whom are of no intelligence interest. Liberty says this power is so wide, and has so few safeguards, that it fails to provide the public with any indication of what data the state may hold on them, or how it might be used, and is thus unlawful.
• The bulk powers in the Act also lack several safeguards which the European Court of Human Rights and EU courts have ruled are necessary in previous surveillance cases, including around what data can be collected in the first place, how data collected can be accessed and searched, and protections for metadata as well as content.

Megan Goulding, Liberty lawyer working on the case, said:

“The state’s mass surveillance powers do not make us safer – they threaten our privacy and freedom of expression, and undermine our democracy.

“We all want to have control over our personal information, and for the government to respect our rights. But these bulk surveillance powers continue to allow the state to hoover up the messages, calls, web history and more of millions of people. The lack of proper safeguards around these powers leaves journalists and lawyers particularly exposed to state spying – undermining core pillars of our democracy.

“To prevent ongoing abuse of power against all of us we need a surveillance regime which is targeted, proportionate and heavily restricted.”

Michelle Stanistreet, NUJ general secretary, said:

“The NUJ’s intervention in this appeal is to ensure that every effort is made to challenge the harmful consequences of the Investigatory Powers Act for journalistic communications and the right of journalists to protect sources.

“Without sufficient protections, blanket powers can be used by the government to undermine democracy and the public’s access to stories in the public interest. The government must act now to safeguard journalism.”

1. Details of all the cases and how they fit together can be found here.

2. Liberty instructs Shamik Dutta at Bhatt Murphy Solicitors, Ben Jaffey KC of Blackstone Chambers, David Heaton of Brick Court Chambers, and Sophie Bird of Brick Court Chambers.