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The Bureau of Investigative Journalism (BIJ) filed an application on Friday with the European Court of Human Rights in Strasbourg challenging current UK legislation on mass surveillance and its threat to journalism.
Lawyers Gavin Millar QC at Doughty Street Chambers, Conor McCarthy at Monckton Chambers and Rosa Curling at Leigh Day solicitors have been assisting the BIJ with its investigation. The group argues that UK legislation imposes constraints on journalistic free expression and does not offer enough protection for journalists’ sources, therefore it is in breach of Articles 8 and 10 of the European Convention of Human Rights (ECHR).
Information uncovered by American whistleblower Edward Snowden appears to highlight how developments in mass surveillance could pose a major threat to the process of journalism. Rules for the interception of data are set out in the Regulation of Investigative Powers Act (RIPA), however, this act does not offer enough controls or checks for external communications. Therefore, any information exchanged through services such as Gmail, Google Docs and Dropbox may not offer the level of confidentiality expected, the group wrote in their application to the ECHR.
It is not only communications which may be scrutinised by the government or secret services; they also have access to metadata, which is the data generated as you use technology. It includes information such as the date and time of phone calls and where emails are sent from. Metadata can be linked to sophisticated computer programs which can enable the user to collate masses of information, building an intricate picture of an individual or organisation’s movements, contacts, sources and lines of enquiry.
According to BIJ, the main implication of unregulated mass surveillance is that journalists can no longer offer anonymity to their sources, or assume that their work is confidential until publication.
This is further compounded by the number of the situations where it is deemed appropriate for surveillance techniques to be enlisted are vaguely defined within the law. It states that data can be intercepted where it is believed that the security or economic interests of the state are involved, meaning investigative journalists especially have to be cautious when covering topics which may be of interest to the government and the intelligence services.
Currently, the BIJ believes the only way in which journalists can be sure they are protected against mass surveillance is to do all of their communications in person, without the use of electronic devices – something which is often impossible, especially if sources are based outside of the UK.
However, under the ECHR journalists should be able to expect protection, the BIJ asserts. At the very least, the group said, this application will spark high-level debate within the government about how journalism and freedom of expression can be protected when governments are using advanced surveillance.
The BIJ says: “In the long term we would like to see proper regulatory control and scrutiny of how the intelligence services use mass surveillance to ensure these techniques and technologies are not being used to hamper legitimate journalistic investigation and inquiry.”
Reforms can be a deceptive thing. They can be particularly deceptive when covering the intelligence community, which is notoriously resistant to legislative meddling it tends to find intrusive.
Last week, Congress and the White House were a flurry with proposals to alter the nature of bulk collecting of calls and communications of American citizens under the Patriot Act. In a statement released through the American Civil Liberties Union, Snowden went so far as to see this as “turning point”. “I believed that if the NSA’s unconstitutional mass surveillance of Americans was known, it would not survive the scrutiny of the courts, the Congress, and the people.”
Three plans are on the table – the USA Freedom Act (otherwise known as the Leahy-Sensenbrenner bill), the more conservative House Intelligence Committee Bill (the Ruppersberger-Rogers bill), and the President’s own proposal. The latter has yet to mutate into the language of legislation, but is by the far the most important one to date. For that reason, it deserves greatest scrutiny.
All the proposals, in some measure, deal with the operation of Section 215 of the Patriot Act. The provision facilitates current bulk collection and remains a creature of the post-September 11 2001 era, when the Bush administration extended the surveillance state with knee-jerk enthusiasm. Defenders of the provision argue that metadata gathered under the program remains vital in identifying links between terrorist cells inside the United States. Privacy advocates remain unconvinced by the inefficiency of a program that has been affirmed.
President Obama’s proposal involves allowing phone companies to retain their databases of records in standardised, interoperable format. The reason behind this is to allow government officials quick and easy access to the material when required. The focus on storage will shift from government agencies – a main bone of contention for privacy advocates – to telephony companies. There is an additional oversight measure – the NSA would, in obtaining access, have to seek an order from the Foreign Intelligence Surveillance Court. In turn, the FISC would have to be satisfied that the records pertained to a person connected with a terrorist organisation.
The enthusiasm for the changes last week was certainly evident, suggesting the administration had struck a delicate balance between privacy and security. In Obama’s own words, “I am confident that this approach can provide our intelligence and law enforcement professionals the information that they need to keep us safe while addressing the legitimate privacy concerns that have been raised.”
Reuters stated that the Obama administration had “announced details of its plan to end the government’s vast bulk collection of data about phone calls made in the United States”. Even more cautious observers, such as Jameel Jafeer, suggested that this was “an acknowledgment that a program that was endorsed in secret by all three branches of government, and that was in place for about a decade, has not survived public scrutiny.”
For all that enthusiasm, Jafeer would also suggest that various operational matters needed clearing up. What would, for instance, be the governing standard of suspicion the FISC would use in its judicial deliberations? There is every suggestion that the reforms are driving down the standard of suspicion required in various cases – from “probable cause” to “reasonable suspicion”. For that reason, it would be difficult to see refusals to government petitions except on rare occasions. The FISC will continue being a formalised rubber stamp.
A looming question here is what constitutes a “phone record” for the purposes of Obama’s reforms. Phone records obtained by national security letter statutes and the pen register would need to be incorporated into the reforms – to not do so would render any changes futile..
There is a striking addition to the NSA’s powers that will take place if Obama’s current proposals go through in their current form. The NSA would only be losing authority to collect and hold telephone calling records for up to five years from landlines. Telephony companies will be expected to hold records for up to 18 months. More than adequate compensation is being offered to the NSA’s apparent trimming of data access. The compromise has come in the form of collecting cell phone data, a considerable expansion of power given that the NSA claims that only 30 per cent of all call data of the country is being tapped into.
This in itself is a curious suggestion, given that the NSA is already gathering up to 5 billion records a day on the location of cell phones around the globe. Presumably, local coverage in the US of cell phone data has been skimpy, at least relative to land lines.
It should come as little surprise that the agency’s chief, the retiring Gen. Keith Alexander, was enthusiastic for a solution that would, in effect, enhance NSA coverage while having metadata from landlines restricted. His lobbying of Congress has been particularly frenetic, given that the collection authority of the agency will expire in 18 months. The drafters have been busy, and Obama has been dismissive of suggestions by such NSA critics as Democratic Senate Judiciary Committee Chairman Patrick Leahy to let the program lapse into oblivion. In that, the President has the support of the House Intelligence Committee members, Republican Mike Rogers and Democrat Dutch Ruppersberger, whose “End Bulk Collection Act” replicates the spirit of Obama’s proposals.
For that reason, privacy advocates can only count the latest measures, notably those of the Obama administration, as refined efforts to enhance surveillance rather than roll back metadata collection. The principle remains only the practice is being tweaked and effectively granted a legal varnish.