Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

RIPA and its watchdogs

When you read the role of Sir Anthony May KB you trace an establishment figure with a winding earnest pathway in the highest courts in the land. Oh and a wry sense of humour.  But take a step away from the figurehead of the Interception of Communications Commissioners Office and the operational head, Joanna Cavan, is a different kettle of fish. Prior to joining she was an independent expert witness in relation to forensic telecommunications and represented the prosecution or defence in a large number of serious and high profile criminal court cases.

For journalists and the police this means a formidable opponent in the pursuit of secret emails.

Hacking trials are still going on despite the fact that journalists faced by their peers have mostly ended up walking out of court innocent – albeit emotionally exhausted and torn to shreds for doing their jobs after their employers handed over all their emails to the police.

In the background is a new insidious set of rules called the Regulatory Investigatory Powers Act (RIPA) which is threatening the foundations of all journalists work in the electronic age.

There are essentially two types of interception warrants. RIPA section 8(1) warrants and section 8(4) warrants and all are for the capturing of the content of communications and related communications data.

8 (1)    says – An interception warrant must name or describe either—

(a) one person as the interception subject; or

(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place.

8(4)     says – Subsections (1) and (2) shall not apply to an interception warrant if—

(a) the description of communications to which the warrant relates confines the conduct authorised or required by the warrant to conduct falling within subsection (5); and

(b) at the time of the issue of the warrant, a certificate applicable to the warrant has been issued by the Secretary of State certifying—

(i) the descriptions of intercepted material the examination of which he considers necessary; and

(ii) that he considers the examination of material of those descriptions necessary as mentioned in section 5(3)(a), (b) or (c).

Unreadable

Yes, like all rules made by the State, they are unreadable but basically it means that RIPA gives the powers for everyone to be spied on with every Facebook, Twitter or other electronic mention. Then if the police want to investigate further they should get further agreement from a named senior politician. Put smoothly by a Government official, “RIPA permits mass interception of communications but controls exist on further access to the messages content.”

For journalists it means that if someone comes to us with a story and we check them out using our mobile phone or any other electronic media then we are ourselves a target for being a subject for one of these warrants. And even more important that our “contact” can be traced, identified and …… well we are back in the twilight world of “surveillance” where it is breach of security to say if a warrant has been issued – so don’t ask!

The rules are clear.  RIPA is for national security, to Prevent/detect serious crime, to safeguard the economic well-being of the UK and as part of an international mutual assistance agreement (dealing with serious crime).

Except when the best known case came to light through Plebgate it was simply a way for the Metropolitan Police find out which officers had spoken to The Sun and sacking them – leaving the rest of us puzzled as to which one of those rules applied.

In practice there are four Secretaries of State and one Scottish Minister who undertake the main burden of authorising (or declining) interception warrants. The Secretaries of State and Minister mainly concerned are;

the Foreign Secretary, The Rt Hon Philip Hammond MP

the Home Secretary, The Rt Hon Theresa May MP

the Secretary of State for Northern Ireland,  The Rt Hon Theresa Villiers MP

the Defence Secretary, The Rt Hon Michael Fallon MP

the Cabinet Secretary for Justice for Scotland, The Rt Hon Michael Matheson MP.

And just before the election and with an annoymised report issued by Sir Anthony showing that over a three-year period RIPA was used against 105 journalists and 242 sources, the Government announced a revised code of practice so that any journalist had to be subjected to getting agreement from the court.

Fine until July when, true to form, the IOCCO said there had been another two breaches by “un-named police forces”.

But again I come back to the quiet backwater of the IOCCO and these RIPA regulations which were for counter terrorism and never envisaged as a weapon to strike journalists. The IOCCO aims are to ensure

the systems in place for the interception of communications are sufficient for the purposes of RIPA Part I Chapter I and that all relevant records have been kept;

all interception has been carried out lawfully and in accordance with RIPA Part I Chapter I and its associated Code of Practice; and,

any “errors” are reported to Sir Anthony May and the systems are reviewed and adapted where any weaknesses or faults are exposed.

And now I have started to be very afraid of this deadly weapon in which a few selective people know the secrets and journalists are once again the enemy.

Liz Justice