Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Continuing lack of oversight on secret snooping of journalists by state agencies.

The cover of the 2019 annual report of Investigatory Powers Commissioner’s Office which now regulates the up and running OCDA (Office for Communications Data Authoristions.)

The Investigatory Powers Commissioners’ Office (IPCO) has reported that in 2019 up to 50 UKgovernment agencies made 116 targeted communications data requests in relation to journalists ‘whilst 15 were made to identify or confirm a journalistic source.’

It has further indicated that ’17 applications were made for warrants under the Investigatory Powers Act 2016 (IPA) where the purpose was to obtain material which the intercepting agency believed would relate to confidential journalistic material.’

The report says: ‘In all cases, the Judicial Commisioners (JCs) were satisfied that the case for obtaining confidential material was well made and the proposed activity was necessary and proportionate. ‘

The 2019 report also says: ‘Only one application was made for the acquisition of communications data which was expected to include confidential journalistic material.’

Graphic in 2019 IPCO Report setting out communications data authorisations for ‘Sensitive professions’ with the ‘Journalist’ category highlighted.

While the report could be said to be full of good intentions the IPCO has still not answered, or fully addressed 20 questions the Chartered Institute of Journalists put to them in March this year.

Institute President Professor Tim Crook say: ‘Sadly there is still a massive Open Justice deficit in the entire system of oversight.’

He added: ‘While the Investigatory Powers Commissioner Sir Brian Leveson is reassuring about the commitment to protect freedom of expression and respect journalistic confidentiality and protection of sources, the legislation has created an infrastructure of working in secret.

The Chartered Institute of Journalists believes there needs to be more clarity on:

  • 1. Identity of the law enforcement and public authorities applying for communications data relating to journalists and their sources and the journalists and publications affected;
  • 2. Any clarity on difference between ‘requests’ and ‘authorisations’ so that some kind of quantitative measurement can be made of the nature of oversight;
  • 3. While the system engages independent judicial oversight, it does not facilitate Open Justice equivalence. It does not match the extent of disclosure when applications are made for production orders or access to confidential journalistic material under the Police and Criminal Evidence Act 1984;
  • 4. In reality and practice the oversight rocess is secret justice that guarantees mystery and suspicion. The Institute believes there is a need for much more information about the justification for warrants and communications data interceptions. It should be possible at the very least to provide summary accounts.
  • 5. There is a significant natural and open justice problem in that journalists and sources affected are excluded from any knowledge and awareness of the interception while it is being carried out and remain barred from any knowledge after the event.

The Institute acknowledges that the questions and requests it has made to the IPCO appear to have been taken into account.

There has been improved reporting and explanation of the process in the annual report.

The 2019 Report shows palpable sensitivity and consideration of the principle of journalistic confidentiality and the protection of journalist sources.

For example, the report states that communications data requests affecting journalists are ‘subject to an independent decision by the Office for Communications Data Authorisations (OCDA) and are not subject to Judicial Commissioner review.’

The 2019 report reveals: ‘We have continued to find that in the majority of cases the applications in this category relate to circumstances where a journalist has been a victim of crime which is under investigation, for example where a journalist has reported being the subject of harassment, and the police will make a request to capture their communications data records as evidence of this.’

This is an alarming indication of the growing problem of intimidation and threats to working journalists in social media and digital communications.

The current system whereby communications data requests affecting journalists are ‘subject to an independent decision by the Office for Communications Data Authorisations (OCDA)’ still lacks public interest transparency and accountability.

‘Red Cross’ style visits and inspections by Judicial Commissioners, however rigorous and diligent, will never be an adequate substitute for due judicial process open to public and media scrutiny.

The Institute welcomes the Report’s observation that ‘Our inspections have not identified any concerns in relation to the handling of any journalistic confidential material or material relating to journalistic sources.’

In addition, the Institute is pleased to read that requests for communications data relating to confidential journalistic material ‘have been subject to the double lock’ of approval by a Judicial Commissioner. and that such authorisations ‘must be necessary and proportionate to conduct the proposed interference or interception.’