The Investigatory Powers Commissioner’s Office has acknowledged the campaigning by the Institute to provide more transparency and information on the oversight of the 2016 Investigatory Powers Act- otherwise known as the Snooper’s Charter.
The legalisation gives 47 public bodies access to communications and phone data when investigating crime.
This includes Britain’s intelligence agencies such as MI5, MI6 and GCHQ as well as police forces throughout the UK, and the National Crime Agency.
The IPCO revealed in its report for 2018:
In December 2018, Professor Tim Crook contacted us to request additional information relating to the use of investigatory powers to obtain data relating to journalists.
The IPCO added that in relation to communications data requests concerning journalists:
…we recognise that the statistics we produce in this area could be clearer and we will, therefore, work with the relevant public authorities on improving these for future reports.
Query 1. Clarification on difference between communications data requests and applications for warrants to obtain journalistic confidential material.
The report for 2018 states under 3.10: ‘In 2018, six applications were made for warrants under the IPA where the purpose was to obtain material which the intercepting agency believed would relate to journalistic confidential material. In all cases, the JCs were satisfied that the case for obtaining confidential material met the relevant threshold under the IPA.’
This contrasts with ‘3.12 As shown at Annex D, 203 communications data requests were made in relation to an individual of journalistic profession. On the basis of our inspections, we are satisfied that in the majority of these cases, the application related to the protection of a witness or victim, for example in the case of harassment of an individual who falls into one of these professions. However, we recognise that the statistics we produce in this area could be clearer and we will, therefore, work with the relevant public authorities on improving these for future reports.’
a. Would it be possible to explain the difference between ‘communications data requests’ and ‘applications … made for warrants under the IPA where the purpose was to obtain material which the intercepting agency believed would relate to journalistic confidential material’?
b. Do the data requests relate to and arise from applications for warrants, or are they different forms of interception and surveillance?
Query 2. More information on approvals and refusals by the Judicial Commissioners.
a. Would it be possible to have clarification on whether all the data requests were approved by the Judicial Commissioners and if this is not the case receive a breakdown on how many of the data requests were approved and how many were refused?
b. Where data requests were refused, what were the reasons for the refusal?
c. Would it be possible to identify which of the 47 public bodies made the data requests and quantify the number of data requests for each public body?
d. It is stated that the 203 data requests related ‘to the protection of a witness or victim, for example in the case of harassment of an individual who falls into one of these professions.’ Unfortunately we do not fully understand what this means. We are not able to appreciate how a data request of a journalist professional’s communications data could relate to the harassment of an individual who is also a member of the journalist profession. Would it be possible to explain further?
e. Would it be possible to explain how the public bodies making the data requests and the Judicial Commissioners adjudicating on the requests decide and confirm who is an ‘individual of journalistic profession’?
f. Would it be possible to explain how each Judicial Commissioner balances the Article 10.1 rights of the individual journalists and their employing publishers, and the qualifying rights under Article 10.2?
Query 3. Identifying intercepting government agencies and clarifying the threshold for giving the green light for warrants in relation to journalists and their sources.
a. Under 3.10 of the six applications made for warrants under the IPA where the purpose was to obtain material which the intercepting agency believed would relate to journalistic confidential material, would it be possible to identify the intercepting agency in each case?
b. Were there any warrants applied for during 2018 where the intercepting agency believed there was an intention to identify or a risk of identifying a journalistic source? In other words of the six warrants applied for did any relate to an intention to identify a journalistic source, or risk doing so?
c. Under 3.10 it was stated: ‘In all cases, the JCs were satisfied that the case for obtaining confidential material met the relevant threshold under the IPA.’ Would it be possible to explain more fully what that relevant threshold is?
d. On July 3rd 2019 we were informed by your very good selves that the Investigatory Powers Act 2016 cannot be used to identify a journalistic source ‘save when there is an immediate threat to life.’ Would you be kind enough to confirm that the six applications made in 2018 under the IPA only related to investigations where there was an immediate threat to life’?
e. In the letter we received from you on July 3rd 2019 we were given the impression that IPA 2016 cannot be used to acquire data which is intended or is likely to identify journalistic sources save in situations when there is an immediate threat to life and that in all other cases the investigating government body has to use PACE 1984 or 2000 Terrorism Act Production Order court processes. Would it possible to confirm that this is still the case.
f. Is there a different approach and threshold for applications for warrants where the purpose was to obtain material which the intercepting agency believed would relate to journalistic confidential material, and applications for warrants where the purpose was to obtain material which the intercepting agency believed would identify or risked identifying a journalistic source?
Query 4. Extending double-lock scrutiny from journalist sources to journalsistic confidential material.
a. We appreciate the notice of the application of double-lock scrutiny of confidential data applications relating to journalistic sources introduced between 27th February and 18th March 2019. Would it be possible for the IPCO and Judicial Commissioner Lord Justice Leveson to consider applying a double-lock scrutiny for warrants relating to journalistic confidential material?
Query 5. Improving open justice and accountability of judicial commissioner investigation and decision making.
a. While the Institute appreciates the important role that the independent judiciary is engaging in the Investigatory Powers Act process, we would ask the IPCO and Judicial Commissioners to reflect on how they can close the gap in open justice and judicial accountability between a process that is secret and not fully reported until more than a year after the event, and the process of an independent judge sitting in court and presiding over a production order application with the relevant parties represented and the judge always having the opportunity to formulate and deliver a judgement of public record contemporaneous to the decision made?
b. Is there a role for a Special Advocate where the interests and rights of a professional journalist and/or source need to be represented and argued for?
Query 6. Identifying journalists whose communications data has been accessed
We have asked for identification wherever possible of the government/public body seeking communications data of journalists under IPA 2016, and applying for warrants when seeking confidential journalistic material or the identification of a journalist’s source or risking the identification of a journalist’s source.
a. Would it be possible to consider identifying the journalists affected and their respective publications?
b. If this is not possible, would it be possible to explain in each case why this information has to remain secret?
c. It is traditional in the due process of the independent judicial adjudication affecting journalists and publications with Article 10 Freedom of Expression rights that decisions concerning the suppressing of the identification of legal parties are explained and made accountable. Would it be possible for this to be achieved in IPCO reporting of Judicial Commissioner intervention and decision making?