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Journalists, surveillance and the police: How can the secret state learn to live with the fourth estate?

© NUJ

31 March 2015

Last night the Press Gazette held a panel meeting at City University on journalism, surveillance and the state.

The panel was chaired by Dominic Ponsford, editor of Press Gazette and the speakers included:

  • Michelle Stanistreet - general secretary of the National Union of Journalists
  • Alan Rusbridger - editor in chief of Guardian News and Media
  • Sir David Omand - former UK security and intelligence coordinator and an ex director of GCHQ
  • Andy Trotter - former chief constable of British Transport Police ex ACPO media lead

The following is Michelle Stanistreet's speech at the event:

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.
The Save our Sources campaign has used classic journalistic doggedness and campaigning to cast a light on the extensive use of surveillance – and I think it’s fair to say it’s wrenched open the eyes of journalists and many newspaper groups to the threats facing the industry.
The revelations 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. It’s also united organisations and individuals that often don’t rub shoulders together – just within journalism.
It’s also propelled a much broader coalition of interests to campaign together – human rights groups, lawyers, media freedom organisations, professional bodies who instinctively understand that we’re facing a terrible onslaught against confidential material that is having a terrible impact on whistleblowers now and in the future.
A fundamental responsibility of any journalist – enshrined in the NUJ’s code of conduct – is to protect their sources. It’s a principle that people have been prepared to fight in court, prepared to go to jail over. But the days of squirrelling away your reporters’ notebook into safe hands abroad, or refusing to hand it to the police, are over.
The secret back-door accessing of data – which has led to sources being identified and outed – puts journalism and journalists in an incredibly vulnerable position. It renders our collective ability to work safely and in a way that genuinely guarantees the safety and confidentiality of others nigh on impossible.
There are upfront mechanisms the police can use if they want to access journalistic material. They can serve a production order, which can be properly responded to by journalists and media companies. In the production order process - judicial transparency is key.
The union has routinely tackled and challenged cases where the police have served production orders on journalists – we’ve funded and supported journalists through lengthy and stressful legal processes in which they have successfully stood up for their sources, and stood by the NUJ’s code of conduct.

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?

It’s clear that campaigning against surveillance has made an impact – both politically and in raising general awareness amongst the public about the dangers surveillance poses. But the concessions secured to date simply don’t go far enough.
The new RIPA codes of practice added a judge to the process, this was one of the union's demands but the new codes still falls short because unlike with the Police and Criminal Evidence Act (PACE), police requests to view data will have to be made – but only to the telecoms providers, not to the news organisations and journalists directly. So it is secret and without transparency processes that can ensure press freedom and the protection of sources are given the serious consideration they deserve. It’s certainly not for police nor for faceless individuals in telecoms companies to set those standards for us.
And this is not simply a problem about the opportunistic misuse of a particular piece of legislation – not just RIPA but last year’s Data Retention and Investigatory Powers Act, plus intelligence and terrorism legislation, all make for a confusing and complex web.
The NUJ is currently involved in a legal challenge regarding the targeting of journalists going about their work, and the inclusion of surveillance data and material about them on a so-called Domestic Extremist Database. NUJ members have been putting in subject access requests to ascertain just what information is being held about them.
NUJ members on the Domestic Extremist Database are individuals who have not done anything wrong, have never been accused of breaking the law – they’re being targeted and monitored and information about their activities are being logged on a database ostensibly created to log home-grown terrorists.

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.
And of course it’s not simply a problem for journalists – the information exposed by Peter Francis demonstrated that the police have spied on MPs and trade unions, and the authorities have also spied on lawyers.
Critically events of the last couple of years – on surveillance, on the legal cases brought against journalists accused of corrupting public officials and the RIPA revelations - all of this has made the climate for whistleblowers incredibly difficult.
How can any potential source, someone who believes that they have information that absolutely should be in the public domain, have any faith that their identity and their future can be safe in any one journalist or newspaper’s hands? We lose the ability to protect our sources at our peril.
If the authorities want to get their hands on journalistic information they should have to go through a transparent legal process. They shouldn’t be allowed to secretly monitor journalists or put them on secret databases. Terrorism laws should not be used as convenient cloaks to sidestep measures that protect press freedom and the ability of journalists to inform the public and to hold power to account.
We’re coming up to a general election and whilst surveillance and its consequences is not an issue that most politicians believe to be a key priority – it’s up to us as journalists and concerned citizens to make it into a 'doorstep issue'. Because when the dust settles after Thursday 7 May this will need to be a key campaign.
The NUJ wants a shield law for journalists, one that is fit for purpose and forms part of new legislation.

Press Gazette have published a story about the event: Ex-police chief: No return to 'good old days', no 'informal' relations, a 'more honourable press'

Tags: , surveillance, ripa, government uk, legislation, production order, protection of sources, ethics, code of conduct, legal action, legal challenge, police, pace, bureau of investigative journalists, domestic extremist, echr