Tuesday, September 09, 2014

Working around journalistic privilege

Last week, in a particularly outrageous piece of news, we learned that the London Metropolitan Police Department had obtained a journalists phone records in an effort to identify their sources. Sadly, it was all legal - the Regulation of Investigatory Powers Act allows UK police to obtain phone records without a warrant, simply on the word of a senior police officer. There's no oversight, and no ability to challenge such a demand.

But in case anyone thinks this is a local symptom of Britain's police state, it can happen here - and it already has. Police investigating the recording of the "teapot tape" last election used a production order to seize journalist Bradley Ambrose's text messages, including legally privileged discussions with his lawyer. Because the information is obtained from a third party - the phone company - there's simply no protection for journalistic, legal, or any other evidential privilege. And because such powers can be used for any imprisonable offence, and unauthorised disclosure of certain official information is technically imprisonable (even if it has never been prosecuted), the law can be used specifically to hunt for those who leak embarrassing or politically sensitive information to the media.

or, in short: because the police have free access to our phone records, the traditional journalistic right to protect their sources from state persecution no longer exists.

This law needs to be changed. Requiring the police to keep basic records on it would be a start, as would requiring them to inform the issuing officer if the target is a journalist or lawyer. But the real problem is that it is a highly intrusive power, which can expose a great deal about people's lives. Intercepting the same information as it travels through the network would require evidence of serious crime and an argument that there was no other way to obtain it; pulling the same information off a server should have to meet the same threshold.