"Investigatory powers bill campaign continues" says NUJ general secretary
28 June 2016
Michelle Stanistreet, NUJ general secretary's speech to the NUJ’s PR and communications branch meeting with guest speaker David Omand, former director of GCHQ.
I want to bring the focus back to the views of the broader journalistic community, and indeed the trade union perspective, on the growing surveillance culture and the Tory government’s bill that has been expedited through parliament and is today getting its second reading in the Lords.
David has made his displeasure known in the past about the use of the ‘snoopers charter’ or the phrase the surveillance state, referring to them as misleading and perverse when describing the activities of the our country’s secret intelligence gatherers.
But it perhaps won’t surprise you that the NUJ and other trade unionists might view the surveillance of us as citizens, as journalists, and as trade unionists through a rather less benign, more sceptical prism.
Let me give a few examples as to why.
Take blacklisting - in May 2016 workers who were blacklisted by construction companies won millions in compensation after a long-running and emotionally draining legal battle. Unite, the GMB and UCATT have all reached settlements with construction firms totalling over £15 million for workers who had their reputations and their livelihoods trashed. The blacklists included details of worker's political views, competence, and trade union activities, and was used by dozens of construction firms to vet those applying for work on building sites.
It was collaborative work in the late eighties and early nineties between journalists, unions and parliamentarians that exposed and destroyed the Economic League - the most effective blacklisting operation of the post war period, focussed on targeting so-called 'left wing trouble-makers' and those perceived to be a 'threat to enterprise'.
It was also journalistic endeavour that led to the Information Commissioner starting an inquiry which led in 2009 to a raid on an anonymous building in the West Midlands which was home to the Consulting Association. The mysterious organisation turned out to be funded by the country’s leading construction companies with the sole purpose of maintaining records on those it considered troublemakers.
The ICO seized files on more than 3,200 people. An analysis of the files showed that raising health and safety fears or becoming active in a union was enough to earn you a place on the blacklist. The files held home addresses, national insurance numbers, gossip from managers, copies of letters written to the press and even graffiti on toilet walls. Companies paid £2.20 each time they wanted a name checked and in a single three-month period Robert McAlpine alone had more than 5,800 names checked – the same time the company had a contract to build some of the Olympic Games facilities. This was blacklisting on an industrial scale – and at a very early stage and some of the information on the files could only have come from police sources.
The NUJ also has had repeated experiences of our members being put under state surveillance – simply for doing their jobs.
We have on ongoing legal case against the Metropolitan Police Commisionner and the Home Secretary, challenging the fact that six NUJ members have had their lawful journalistic and union activities monitored and recorded by the Metropolitan Police.
Surprise surprise – all of them have worked on media reports that have exposed corporate and state misconduct and they have each also previously pursued litigation or complaints arising from police misconduct. Indeed in some of those cases, the Metropolitan Police Commissioner has been forced to pay damages, apologise and admit liability to these individuals after their journalistic rights were curtailed by his officers at public events.
Yet these same individuals were put on a secret police database, called the National Domestic Extremism and Disorder Intelligence Unit, which is supposed to monitor ‘domestic extremism’. These people are not terrorists, they are journalists.
The logs we’ve seen include references to health records, family members, clothes worn, sexuality, places visited in the course of their journalistic work – wholly intrusive state surveillance of journalists that we believe is the tip of the iceberg.
And the former undercover spy turned whistleblower Peter Francis revealed that a covert police unit monitored a wide range of political groups, and infiltrated and gathered intelligence on members of at least five trade unions.
Francis also revealed the police conducted spying operations on a string of Labour politicians during the 1990s, covertly monitoring them even after they had been elected to the House of Commons - saying he read secret files on 10 MPs during his 11 years working for the Metropolitan Police’s Special Branch. They include Labour’s Harriet Harman, the former cabinet minister Peter Hain and the former home secretary Jack Straw – a clear abuse of our parliamentary democracy.
Protect our sources - of course in our work as journalists, our overwhelming duty – and a cornerstone of our code of conduct – is to protect our sources. When the state is hellbent on finding out just who your sources for stories that they desperately want to keep out of the public sphere, it is our sources as well as our collective journalistic integrity that is threatened.
Stories often rely on anonymous sources who are brave enough to share information they believe must be in the public domain. Stories like the recent leak of the Panama Papers - the leak of 11 million documents, dating back 40 years, from an anonymous source who used encrypted digital communications. Or the BBC Panorama investigation that revealed how dozens of disabled patients were abused by members of staff at the Winterbourne View care home, and sparked a massive reconsideration of the standards of residential care.
Or the Channel 4 Dispatches documentary that revealed evidence of human rights abuses in Nigeria - the information was provided by anonymous sources. Or the datafile that revealed the parliamentary expenses scandal and led to significant reforms.
So here we are, on the brink of the implementation of the government’s Investigatory Powers Bill.
Let me be clear - this is not an act of progress, this is not about bringing intelligence gatherers out of the shadows. This is a piece of legislation that will do irreversible damage to journalism and press freedom in this country. The international community of journalists is also watching on with anxiety. The use of state surveillance and the impact on the way journalists do their work and protect their sources has become one of the biggest issues facing our industry today.
Of course there’s always been this tension – and the NUJ and the industry have had many run-ins with the police and authorities over the years, when they have served production orders on journalists to seize notebooks, information gathered in the course of their work, or video. In this process, under the Police and Criminal Evidence Act (PACE), judicial transparency - and the ability to fight about this order in court – is key.
The revelations 2 years ago that the police had been routinely using – or rather misusing - the Regulation of Investigatory Powers Act (RIPA) to secretly access information on journalists and their sources sent genuine shock waves throughout the industry.
But if you don’t even know that your data is being snooped on and your sources spied on, how can journalists defend themselves and the long-held principles they stand for? There’s no difference in our minds between the police getting hold of the traditional reporters’ notebook, or getting their hands on our emails, metadata, bugging our activities by remotely activating the mics on our mobile phones.
A world where journalists are being treated like terrorists, criminals and extremists is one where something is badly wrong.
The NUJ is also currently intervening in a case brought by the Bureau of Investigative Journalists to the European Court of Human Rights –along with the International Federation of Journalists. It’s effectively a challenge to the UK government’s failure to put in place proper measures to protect journalistic material and sources.
We found out about the backdoors access to journalistic data by chance. It was the case of Tom Newton Dunn, The Sun's Political Editor, as part of the 'Plebgate' investigation, the police used RIPA to access his phone records in secret. They did not notify him that they had accessed his material or sources. The police obtained the phone records without notification or consent and in other RIPA cases, when the police have been spying on journalists no journalist was informed in advance.
Critically - if this example was tested against the new proposals contained within the Investigatory Powers Bill then nothing has changed.
In the aftermath of the RIPA scandal, a report from the Interception of Communications Commissioner last year revealed that police had secretly obtained the phone records of 82 journalists in the previous three years in order to find their confidential sources. Again, we believe this to be the tip of the iceberg.
The Investigatory Powers Bill includes the following provisions:
- Powers for the targeted interception of communications
- Powers for targeted equipment interference (accessing computer equipment, mobile phones etc) in order to obtain stored communications and other data
- Powers to obtain communications data (the context, but not the content of a communication – i.e. the metadata) from communications service providers
- Powers to obtain internet connection records
- Powers for the security and intelligence agencies to undertake interception and equipment interference on a larger scale and to acquire communications data in bulk
- Powers for the security and intelligence agencies to acquire and retain bulk personal datasets (datasets which contain information about a wide range of people, most of whom are not of interest to the agencies)
- A new system for the authorisation of warrants
- An overhaul of the oversight regime for investigatory powers, with the three current commissioners and their offices replaced by a single Investigatory Powers Commissioner.
So why is the NUJ campaigning so hard on this?
Well firstly – we’re not alone. This is an issue that has led to an unprecedented alliance between us, the entire industry, the legal profession and many other like-minded organisations.
We care about press freedom - a free press is a fundamental aspect of any functioning democracy. The bedrock of a free press is the ability of journalists to do their work without the secret interference of the state.
We care about ethics - the NUJ has a longstanding principle of the protection of sources. The union's ethics code first established in 1936 still includes this principle. Furthermore, the NUJ has historically secured legal precedent in the Goodwin v UK 1996 case. The judgement stated:
"Protection of journalistic sources is one of the basic conditions for press freedom".
We value the safety of journalists - one of the most serious consequences of the lack of protection is the impact on the physical integrity of journalists. This applies to journalists who work in dangerous environments such as war zones and it also applied to media workers who investigate organised crime. If journalists are perceived as informers to the authorities, or as future witnesses in a trial, or as indirect evidence gatherers for the police, they can become a target.
This bill simply does not contain sufficient safeguards and despite some movement since the debate in the House of Commons, the provisions are still not fit for purpose – namely there remain insufficient protections for journalistic communications, sources, material and activity.
We held a meeting with the Minister responsible for this bill and the leader in the Lords last week to press home our concerns.
Indeed – Earl Howe committed this afternoon to bring new amendments to the Lords that will protect trade unions from state surveillance across all powers in the bill. This was also one of our demands, and we welcome this concession. But there’s more to do!
We also want:
- Safeguards for journalists that apply across the different powers set out in the bill and the protections should not be restricted to communications data
- Protections for journalists should apply to communications, sources, material and activity
- A prior notification process should apply to communications, sources, material and activity.
- The new powers in the bill should involve a process in which the media can challenge and appeal decisions and requests.
As I said, this bill’s movement through parliament has been speedy. After the Lords debate today, it then goes to the scrutiny committee then we will have summer recess then the bill will come back for final vote in the House of Commons.
How can you all help?
Self-defence - raise awareness and build a culture amongst media workers to be secure with information and communications. Use the tools available – encryption, your phone is not your friend! Protect your work and your contacts and sources – it’s about tradecraft, not technological fixes.
In your workplace - discuss the bill with colleagues, ask your employer if they will raise concerns with politicians. Highlight and cover stories about surveillance and the new law.
Campaign - the NUJ is working with privacy campaigners, human rights groups, legal organisations and the media industry. We will continue to campaign in alliance with these groups.
In parliament - if you know any Lords then lobby them! We are working across politicial parties and with our parliamentary group. Thank you if you have already contacted your MP and get ready to write and contact your MP again.
This bill is a threat to journalists and the ongoing attempt to criminalise our sources and whistleblowers threatens the very foundations of what constitutes a free and robust press.
Our sources need to be able to trust journalists, safe in the knowledge that they will - we all know what a devastating impact it will have on our industry and on the public.
Please do all you can to help in our campaign - there’s still all to play for.