The government agrees that mass surveillance powers do not protect journalists and sources

The government has agreed that UK mass surveillance laws do not provide adequate protection for confidential journalistic materials and sources.

She acknowledged that the Investigatory Powers Act 2016, widely known as the Snoopers’ Charter, does not provide adequate safeguards to protect confidential journalistic material from intelligence surveillance.

The admission was revealed last week in a High Court decision that gave campaign group Liberty permission to appeal to challenge the legality of Britain’s “mass surveillance” powers.

Liberty argues that the UK’s mass surveillance system allows intelligence agencies to collect “private communications and internet data from swathes of the [British] Population” without adequate legal guarantees.

Security agency MI5 and GCHQ can also hack into the public’s computers, phones and spreadsheets to create “huge personal datasets” of information about the population without suspicion, they say.

The High Court, in a decision dated April 8, 2022, granted Liberty permission to appeal a 2019 court decision in light of a landmark ruling by the European Court of Human Rights (ECtHR).

The ECtHR found in May 2021 that GCHQ’s mass wiretapping program violated the privacy rights of UK citizens and provided insufficient protection to journalists and confidential journalistic material.

The government has also acknowledged that there are insufficient safeguards to protect the privacy rights of individuals when intercepted data is searched in a way that individuals can be identified.

Katy Watts, a lawyer at Liberty, said: “We should be in control of our personal data and we should have government that respects our right to privacy and our freedom of expression. But the government has admitted that it is not meeting these basic requirements.”

Bulk communication data, which includes details about a person’s phone and email contacts, websites visited, and their cell phone location, can be used to create very detailed profiles of people.

This can include people’s personal relationships, contact with doctors or therapists, their physical movements and whereabouts, participation in protests and political views.

In an eight-page decision dated April 8, 2022, the High Court granted Liberty permission to appeal a 2019 court ruling that denied the NGO access to a judicial review to establish a declaration of inconsistency between the Investigatory Powers Act and Human Rights to apply for an act.

Liberty, the Home Office and the Foreign and Commonwealth Office agreed to postpone the appeal, which finally went to trial last week, pending the European Court of Human Rights’ ruling in the Big Brother Watch vs. UK case and other legal arguments found before the Investigatory Powers Tribunal.

Liberty will appeal on five grounds (see box below). It will argue that the UK surveillance system lacks adequate protections for journalists and sources and communication with lawyer clients.

The appeal will also raise questions about the legality of bulk personal data records – population-size databases containing financial information, travel records and other highly personal data about British citizens.

Liberty will also argue that there is a lack of safeguards to protect personal data that the UK shares with foreign intelligence agencies.

Protection for journalists and sources

The government has accepted that the law on investigative powers does not offer journalists the protection required by Article 10 of the European Convention on Human Rights.

Liberty says the existing definitions of “journalistic material” and “confidential journalistic material” in the UK surveillance system do not go far enough to protect the privacy rights of journalists and confidential sources.

It is argued that a judge or an independent regulator should give intelligence agencies prior authorization before conducting searches of intercepted communications data likely to find confidential journalistic material or to identify journalists’ sources.

Prior approval from an independent regulator should also be obtained for search terms known to be associated with journalists or news organizations. Searches of journalistic material should only be carried out when “an overriding requirement of public interest justifies it” and only be used when less intrusive methods are not available.

Liberty argues that there should be no exclusion from journalistic protection for material “… prepared with intent to further a criminal purpose,” an expression that could include government documents leaked to a journalist.

Under current rules, a leaked document revealing misconduct by a senior government official would not benefit from journalistic confidentiality, the campaign group says.

attorney-client privilege

Liberty will also argue that protecting the privacy of journalists and confidential sources should also apply to lawyers and their clients.

Ben Jaffey QC, writing in legal filings for Liberty, has stated: “Attorneys’ clients expect and rely on communications with their attorney to be confidential (just as journalists’ sources do for their communications with journalists).

“The important role lawyers play in enabling clients to defend and exercise their rights would be frustrated if their communications were not adequately protected.”

The campaign group says the law should require independent approval before intelligence services investigate proprietary material, and that intelligence services’ access to proprietary material should be justified only by an “overriding need of public interest.”

Blurring boundaries between communication and content

The Regulation of Investigatory Powers Act 2000 distinguished between the ‘content’ of e-mails and other electronic messages and ‘communications data’, looking at who sent a message, who received it, the length of the message, the location of the sender and recipient and time of shipment.

Liberty argues that under the Investigatory Powers Act 2016, the distinction between “content” and “communications data” was blurred without proper legal justification. This means intelligence agencies can access “content” from British Isles citizens with fewer safeguards.

The UK Government has accepted that under the Investigatory Powers Act, the full URL of websites people visit, including specific articles they have read or web pages visited, will no longer be considered “content”.

Likewise, a computer’s full directory structure, file names and modification dates, and the time, date and location of a recording are all considered “communications data,” meaning they can be accessed by intelligence services with less legal certainty.

Liberty attorney Watts said: “Mass surveillance powers allow the state to collect data that can reveal a lot about each of us – from our political views to our sexual orientation. These mass surveillance powers don’t make us any safer; they violate our privacy and undermine fundamental pillars of our democracy.

“Our right to privacy protects us all. It is vital that dangerously sweeping mass surveillance powers are curbed and that the government put in place proper safeguards that protect our rights,” she added.

The case is expected to be heard later this year.

New Technology Era

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