The police’s use of RIPA (the Regulation of Investigatory Powers Act) to access journalists’ phone records came under attack this weekend from the Lib Dems, the Sun newspaper, Parliament’s Home Affairs Committee, and the Government's Interception of Communications Commissioner.
We support stronger protection for journalists and their sources. It is right that overuse of RIPA is addressed. But this debate is failing to recognise the reason that journalists’ data can be accessed in this way. All of our data is indiscriminately retained and the police can access it without authorisation from anyone outside the police. We need comprehensive reform of our surveillance laws to ensure communications data is only retained on a targeted basis and access to the data must be approved by judges.
Yesterday the Liberal Democrats passed a conference motion including a call for greater protection for communications records which are legally privileged or relate to journalistic sources. It also emerged that the Sun has written to the Investigatory Powers Tribunal to ask for a public review of the Metropolitan Police’s use of RIPA to access phone records belonging to their political editor Tom Newton Dunn.
Parliament’s Home Affairs Select Committee is concerned about the police’s use of RIPA to investigate journalists and their confidential sources. Keith Vaz, the committee’s chairman, is going to write to every police force, asking them how many times they have used RIPA to request someone’s records, what the purpose of the request was, and the profession of the target of the request.
In addition, Sir Paul Kennedy, the Government’s Interception of Communications Commissioner, has written to all police forces asking them to provide him with full details of all their investigations which used RIPA to access communications data and identify journalistic sources.
We welcome these interventions and agree that journalists and their sources must be able to expect privacy. At present the police are obtaining journalists’ communications data by using RIPA and bypassing the journalistic protections contained in the Police and Criminal Evidence Act. RIPA was supposed to provide powers to law enforcement to deal with terrorist and serious criminal activities, not to uncover confidential journalistic sources. The current position threatens the privacy and freedom of expression of journalists and whistleblowers.
It is also worth remembering that, in terms of data retention, the lack of exceptions for communications subject to “professional secrecy” was one of the grounds on which the CJEU (Court of Justice of the EU) recently found the EU Data Retention Directive to be disproportionate and invalid.
However, the issue also serves to highlight deeper problems with our surveillance legislation. Under the Data Retention and Investigatory Powers Act (DRIPA) everybody’s communications data is being retained without suspicion of wrongdoing. Under RIPA no judicial authorisation is required to access the retained data and the data may be accessed for very broadly defined purposes. The case of Tom Newton Dunn is a reminder that these powers are not always used to fight terrorism or serious crime.
The current debate has so far centred around law enforcement's access to journalists' communications data. It's true that journalists and their sources require privacy, but so does everyone else. And even if the police were not allowed to acquire journalists' communications records, the wider population including journalists, would still have all their communications data retained.
We need an overhaul of our surveillance laws so everyone’s right to privacy is respected, including that of journalists. A new law should ensure (amongst other safeguards) that communications data is only retained on a targeted basis (or for business purposes) and that all requests to access data are judicially authorised.
All of our recommendations for reforming surveillance law are available in our joint report, Don’t Spy on Us: Reforming Surveillance in the UK.