NMA: Draft Investigatory Powers Bill ‘Provides Insufficient Safeguards for Journalism’

The News Media Association said the draft Investigatory Powers Bill provides insufficient safeguards for journalism.

Commenting on the draft Investigatory Powers Bill which was presented to Parliament on Wednesday(yesterday), the News Media Association said: “The Draft Bill provides insufficient safeguards for journalism. The Draft Bill would enshrine sweeping powers affecting all citizens, including journalists and their sources, leaving unchanged other RIPA surveillance powers used against the press. Comprehensive and stronger safeguards for journalism and journalistic sources are necessary.

 “The Draft  Bill will not provide the level of protection across the spectrum of investigatory and other RIPA powers that has been sought by the media and the NMA. It contains no general right to  prior notification, nor the right to contest an application before a judge, before the investigatory power is granted.

“A regime where the Judicial Commissioner is to apply ‘the principles of judicial review’ to Ministerial consent, may mean that approval of the manner of Ministerial acquiescence is more likely, instead of the rigorous test of the applications’ merits that press freedom and protection of sources require. And while the applicant can challenge a refusal, there will still be no way for the media  to contest consent. Meanwhile, urgency procedures allow the ‘so called double lock’ to be bypassed,even where it applies, so that  the powers can be used and damage done long before the review deadline and any possible revoke.

“The police and others will still be able to evade the tougher PACE requirements where appropriate or use alternative powers if easier.”

 The NMA will be considering the Bill in detail. Points of concern include:

  • Insufficient protection is provided for journalists, with the sole specific journalistic shield being the requirement of a judicial warrant in instances where the police are accessing communications data for the purpose of identifying a source. This does not cover applications by the intelligence services, or applications made for a different purpose that have the incidental effect of identifying a source. Code provisions have been ignored in the past.  There is no scope for media contest or challenge, although the applicant can appeal against refusal.
  • The contents of communications will still require the approval by the Home Secretary in order to be intercepted. A judge will then review the decision for procedural propriety, but will not be assessing the application afresh. This falls short of the “double lock” protection that it was hailed to be in the ministerial statement. Meanwhile, urgency procedures allow the purported double lock to be bypassed, so that  the powers can be used and damage done long before the review deadline and any possible revoke.
  • The Bill also contains problematic proposals for investigative journalism and protection of sources on “equipment interference” – the capability for security services and the police to remotely hack technology. This permits, for example, the police to access a smart phone and use its microphone covertly to record sound, without the knowledge of the owner. This was already being done by the security services, but the parameters will now be defined in statute. A judicial warrant will be necessary, and a code of practice will be brought in to regulate “the use of more sensitive and intrusive techniques.”
  • Blanket retention of 12 months’ of records of all websites visited by British citizens, referred to by the Home Secretary as “simply the modern equivalent of an itemised phone bill”, would help identify the object and progress of journalistic investigations by individuals or teams. Authorities would have to use the same application process as for communications data, but local authorities will not be eligible to apply.
  • Other concerns include the scope for changes to be made in the future without public consultation or close Parliamentary scrutiny. For example, the Bill will give the Home Secretary the power to make regulations by introducing secondary legislation to Parliament. If the legislation is passed, these regulations will have the power to require public postal services or telecommunications service to, for example, remove electronic protection of data, or to disclose material.