Journalists’ confidential communications subject to unlawful spying, court hears | Computer Weekly

Communications data

On the first day of a three-day hearing, Ben Jaffey KC told the court it was not necessary for police or intelligence services to read the contents of a journalist’s electronic communications to identify their confidential sources.

The government issues bulk acquisition warrants to require BT and other communications services to disclose all communications data on their networks to the intelligence services on a rolling basis.

There are no provisions to protect confidential journalistic material, journalists’ sources or legally privileged material, he said, appearing before the president of the King’s Bench Division, Dame Victoria Sharp DBE, Lord Justice Stuart-Smith and Lord Justice Lewis.

“In relation to journalist material, communications data will be enough to identify a source. You don’t want to know the substance of the documents that have passed between them because that has been published,” Jaffey told the court.

Government agencies are required to obtain prior approval from a judicial commissioner to obtain a warrant to access confidential journalistic information.

But the protection does not apply in cases where journalists have been passed material considered unlawful, such as a leaked government document.

“Whenever a minister or a civil servant leaks a document to a journalist, which happens every day of the week, that is a breach of the Official Secrets Act,” said Jaffey.

Bulk personal datasets

Liberty’s barrister told the court that bulk personal datasets collected by intelligence and law enforcement agencies could contain, for example, all the emails a particular company has sent or received, a copy of a hospital’s health records, flight records, or other data.

He said there were no protections for journalists’ sources or confidential journalistic information retrieved from bulk personal datasets.

For example, if a journalist was seen meeting a source in a cafe and the source was seen walking off to the tube, it would be possible to query a bulk personal dataset of tube journeys to identify the source.

Equipment interference

Jaffey told the court that equipment interference or hacking could also be used to bypass the need for prior authorisation to identify a journalist’s source.

For example, if a journalist received a text message from a source, the government concedes that it would need to obtain prior authorisation from a judicial commissioner to obtain a copy of the message using bulk interception powers. But if the same journalist received a message through WhatsApp, which is encrypted, there would be no requirement to seek prior authorisation to recover the message through bulk equipment interference, or hacking.

Secondary data

The court heard that the Investigatory Powers Act 2016 had redefined information in electronic communications – previously classed as “content” under the earlier Regulation of Investigatory Powers Act (RIPA) – as “secondary data”, including communications and systems data.

“The activity that people carry out on the internet that might be thought to be content – choosing who to like or not on a dating app, or which page of website to visit – is systems data,” said Jaffey.

On a plain reading of the IPA, the court heard that search terms people type into Google would also be classed as systems data, though the government states that it does not use the search terms in this way.

“The upshot of these provisions is that Parliament has reduced protection for content by deeming lots of things that people do on the internet as content,” said Jaffey.

A government agency would need a targeted warrant approved by a judicial commissioner to intercept the content of communications of someone in the British Isles, under the “British Isles safeguard”. However, this does not apply to secondary data, even though in reality the secondary data contains the substance of the communication, said Jaffey.

He told the court that, in practice, there were no safeguards to prevent legally privileged information being disclosed through secondary data. “There are many examples where legal privilege will be disclosed in communications data. One of them is the fact that an individual has instructed a lawyer, and the name of that lawyer. Another is whether a lawyer has managed to trace and contact a witness,” he said. “There will be cases [where] very sensitive information will be disclosed by communications data alone.”

The court heard that the IPA requires law enforcement agencies to apply to a judicial commissioner if they want to keep copies of intercepted legally privileged communications.

But Jaffey said there should be a requirement to obtain prior authorisation before obtaining

legal professional privilege
. “One of the difficulties, if one is directly targeting privileged material, is that once it has been selected for examination and read, it is difficult to unread,” he said.

Jaffey said that under the IPA, much of the substance of communications between people would be treated as secondary data, rather than content, which was not the case under the previous RIPA legislation. This means the British Isles safeguard, which requires prior independent approval for obtaining data from someone on British soil, and protections for legally privileged communications between a lawyer and a client, does not apply when it comes to secondary data.

“The lack of proper safeguards around bulk surveillance powers leaves journalists and lawyers particularly exposed to state spying – undermining the core pillars of our democracy”

“No basis or rational has been put forward as to why those safeguards were properly reduced,” he said. “Our short submission is there is no justification.”

Bulk surveillance

Megan Goulding, lawyer for Liberty, said the UK’s mass surveillance powers threaten privacy and freedom of expression and undermine democracy.

“Bulk surveillance powers continue to allow the state to hoover up the messages, calls, web history and more of millions of people,” she said. “The lack of proper safeguards around these powers leaves journalists and lawyers particularly exposed to state spying – undermining the core pillars of our democracy.”

The case follows a decision by the High Court on 8 April 2022 to give Liberty permission to appeal a 2019 court decision in the light of a landmark ruling by the European Court of Human Rights.

Liberty, the Home Department, and the Foreign and Commonwealth Office agreed to delay the appeal application until after the European Court of Human Rights gave a judgment in the case of Big Brother Watch vs UK and further legal arguments were held in the Investigatory Powers Tribunal.

The hearing continues.