Email
Journalists never betray a confidential source – but now they do not need to, the law will do it for them. The law will do it for them, without their consent, without their argument and without them even knowing about it.
That is the chilling truth about the Regulation of Investigatory Powers Act 2000 (Ripa). Victims of its wide-ranging powers might argue with some justification that it is less about regulating the investigatory powers of government and more about conferring them without very much regulation at all.
The act, used by the Metropolitan police to access the phone records of Tom Newton Dunn, the Sun’s political editor, has been around a long time. When enacted it was described as a snooper’s charter, and so it proved to be.
Local authorities, emboldened by powers available under the act were soon using it to spy on people to establish whether they really lived in a school catchment area, or were using recycling bins properly.
Far from being cowed by the exposure of such abuse of power, since the act came into force authorities have used it with such enthusiasm that last year more than half a million such Ripa requests were authorised.
It appears the police investigating the Plebgate affair used Ripa powers to obtain Newton Dunn’s phone records as well as records of calls made to the Sun newsdesk. This is not tapping phones, or accessing phone messages – but records of which numbers were called and received by those Sun staff.
The police, who wanted to know the identity of Newton Dunn’s source, which he had refused to reveal, would clearly be keen to get their hands on this information.
We have to be concerned that other forces investigating crimes that have been reported on by journalists will find Ripa very useful in identifying sources, without reference to the journalist concerned or the courts now that the Met has shown everyone the way.
In the past, a request might have been made using the Police and Criminal Evidence Act, requiring a court hearing that can be attended and defended by the newspaper concerned. Ripa has no such requirement, just the authorisation of a senior officer. The telephone company concerned has no legal basis to resist the request, and the subject does not even know about it.
The case of Newton Dunn’s phone records should give us all pause for thought and journalists working with confidential sources now need to carefully consider how they handle them.
There is a well-established tradition among journalists all over the world that confidential sources must not be disclosed and many maintained this principle in the face of threats of prosecution and jail.
Independent journalist Jeremy Warner (now at the Daily Telegraph) was fined £20,000 for his refusal to divulge sources to Department of Trade and Industry investigators looking into insider dealing.
Alex Thomson and Lena Ferguson of Channel 4 News and Toby Harnden of the Daily Telegraph (now Sunday Times) were all threatened with contempt proceedings for refusing to identify their sources to the Bloody Sunday Inquiry.
The case against Sally Murrer, of the Milton Keynes Citizen, was thrown out when a judge decided that police bugging her to identify a confidential source was an abuse of her freedom of speech.
However, all these cases involved a judicial process, held in the open, where the journalists concerned were subject to due process and could, in the first two examples, choose to protect their sources despite prosecution.
Such defiance sends a message to other potential sources that, come what may, and even with the threat of journalists being jailed, the source will be protected at all costs.
This is the truly pernicious aspect of Ripa. Very conveniently for investigating authorities, it removes that opportunity to protect a source and take the hit as a journalist yourself.
Sources know now that if they communicate via phone with a journalist, there is a chance that a police officer will be able to lay hands on a record of that call – which will include what number it was made from; where it came from geographically; when it was made and how long it lasted. The source is effectively blown by access to phone data.
What should journalists do about this? Well, you rapidly enter the realms of espionage, with calls made from disposable mobiles, bought for cash, used once and disposed of before the police can ever access the number used. Telephone boxes, the few that still take cash, not a card, suddenly become very useful.
Face-to-face meetings, away from prying eyes and ears, and certainly not arranged via a journalist’s office or mobile phone, might give some chance of protecting a source – make sure you’re not followed though – it’s all cloak and dagger stuff.
Or, we could review this overly intrusive legislation, but given government’s penchant for prying, there seems little chance of that.
You need look only at the way in which the Data Retention and Investigatory Powers Act was rushed through parliament, from announcement of the bill to act within eight days.
This act compels communications companies to store our data for 12 months – that’s your emails and texts available to investigating authorities in the same way they got hold of Newton Dunn’s phone records using Ripa. At this rate the only secure way to communicate with a contact will by pen and ink letter, delivered by hand.
David Banks is a journalist and media law consultant
;