The end of the fourth estate as a check on executive power

The next few years will see whether 2016 marked the moment when the great Fourth Estate allowed itself to be neutered by the executive and pushed over the precipice of irrelevance.

Whereas under the previous law the authorities were obliged to tell the journalist there data was being looked at, this is no longer the case and the worry is that their information will either be used as an extension to the intelligence of the agencies in question, or it will be used to track down so-called whistle-blowers.

What have the press had to say about the new Act and the threat it represents to their ability to protect their sources? Virtually nothing when compared to the gravity of the issues at stake.

A recent survey carried out by the Contrarian found that less than 10% of respondents thought there had been sufficient media coverage. It would not be an exaggeration to say that post Leveson, the savaging that should have been given to this legislation, is not greatly different to that referred to in another context, as being equivalent to that which might “be dealt out by a dead sheep.”

Whereas the Investigatory Powers Act’s (IPA) predecessor – the Regulation of Investigatory Powers Act 2000 – remained subject the Police and Criminal Evidence Act 1984 which allowed protections for journalists; this protection is removed from the new legislation. More concerningly is the fact that misuse by the executive of its powers under the Act will itself be difficult to establish.

Whilst a recent case at the Investigatory Powers Tribunal – the body holding the powers that be to account – involving the Cleveland police force found that the anti-terror legislation had been incorrectly used to track the source of various leaks from within Cleveland police ranks, such a finding is an exception rather than the rule.

Julia Breene, one of the journalists working for the Northern Echo who broke the story relating to Cleveland police, had her phone illegally tapped. She says: “ You want to make it as easy as possible for sources to come forward; it’s hard enough already getting them to trust us. We should feel reassured that Cleveland police were found to have exceeded their powers however the reality is that we know that potential sources are going to be more reluctant to come forward.”

VARYING DEGREES OF PRESS REACTION

The Investigatory Powers Bill (IPB) was first published in 2015 but given total output on various stories, particularly those that were terrorism related, there has only been a smattering of disapproval in the mainstream press.

Dominic Ponsford, Editor of the Press Gazette, said despite the problems for journalists that the new laws present, “there is a reluctance for newspapers to write about themselves, especially after the phone hacking scandals” when the public lost interest in the rights of journalists.

Nick Davis, a freelance investigative journalist for the Guardian, has a different view as to why there has been a general lack of Press interest. He believes that “there was animosity shown towards the Guardian by other Fleet Street newspapers following the Snowden revelations” and identifies a possible reason for the lack of coverage in the fact that “the right wing papers had to insist – in their Snowden reactions – that bulk surveillance of communications was essential and any attack on that kind of surveillance, treacherous”. In effect he suggests that news media of this view found itself trapped by its own rhetoric.

Roger Alton, a former Executive Editor of the Times, quipped when considering this view, “this is bollocks.”

“It is largely down to the amount of attention paid to Brexit as well as the weakness of the current Labour party who have been completely useless for the past year and haven’t been an effective opposition.”

Alternatively Henry Porter, a front running libertarian who has campaigned on the issue of privacy and press freedom since 2005 simply “couldn’t get anyone interested”.

“The press has shifted to the right and fallen victim to the national security and Brexit rhetoric. Add to this the general lack of controversy about the IPA and you are simply not going to get significant press coverage. After all newspapers need to sell and follow the stories that concern their readers.”

The combination of Brexit and the recent European Court of Human Rights decision that certain aspects of IPA were illegal will see matters reconsidered. However, given the Brexit “take back control” argument, it remains to be seen whether this will make any substantial difference.

HOW CONTROVERSIAL ARE THE INVESTIGATORY POWERS LAWS

Considering the terrorist attacks that have been cropping up across Europe over the past few months and years, to scandalise surveillance is no easy task. It is an incredibly complex issue that few newspapers are reluctant to delve into; partly because readers aren’t engaged with long running legal pieces. The Guardian through its expertise built up in dealing with the Snowden leaks are the best positioned whilst others appear to be reluctant to get involved; especially as there hasn’t yet been a scandal to come out of it.

Privacy International is a human rights organisation focused on privacy intrusions by government or business and Hermit Kambo, the Director of campaigns and development at PI, is concerned about the new act. His view, however, is that the IPA is yet to cause considerable controversy and “until it does people won’t care.”

He goes on to say that during the Snowden leaks neither the US nor UK government agencies provided “a shred of evidence as to how he, Snowden, had endangered anybody’s life”.

“Conversely Snowden hasn’t demonstrated actual harm either. It is all generalities and does not have the visceral impact of how this person or that community is being targeted.”

In short: “We need a story; it’s just like any other aspect of the media. There needs to be a victim. Until a scandal happens it will just drift on in the back pages of the interested broadsheets and tech media.”

COULD THE IPA BE A STEP IN THE RIGHT DIRECTION?

The political reaction from the press has been mooted and is pretty much reflected in the lack of political opposition where the Labour party – for the most part – chose to abstain on the final vote; the Lib Dems continued to fly the liberal anti-surveillance banner voting against; whilst Home Secretary Amber Rudd put over the Government’s view that the IPA is “world leading legislation that provides unprecedented transparency and substantial privacy protections.”

This so-called “world leading legislation” may be new but the powers it confers on the Executive are nothing new. Annie Machon, a former MI5 officer, who resigned along with her partner David Shayler in order to reveal incompetence and criminality in the service, says: “ I think that there was a diabolical response to the IPA. Putting aside it’s against their [the press’] self-interest in terms of getting decent sources with good stories that they need to expose; just not informing the public is criminal.”

Not only are these powers going to obstruct the press fulfilling their role, but they will also be detrimental to national security according to Machon. “Useful, indeed crucial, intelligence on targets and their associates is lost in the tsunami of available information. Indeed this seems to have been the conclusion of every inquiry about the recent spate of ‘lone-wolf’ and ISIS inspired attacks across the West; the targets were all vaguely known to the authorities but resources were spread too thinly.”

JOURNALIST SECURITY

The Guardian is the only organisation that clearly explains on their website how to contact them securely. Glen Greenwald famously nearly blew the Snowden scoop because he found it too tricky to download the PGP (pretty good privacy) encryption so that Snowden could send him the files.

Journalists are going to have to improve their tradecraft in order to remain a step ahead of the authorities and it has been suggested by the National Council for the Training of Journalists that more in depth courses in maintaining digital security should be provided to those who need it. Some media organisations such as Liberty are already offering surveillance and technology workshops and Annie Machon believes all of these organisations should provide their journalists with training in how to protect their sources.

Ultimately the government’s desire to snoop is only matched by the media’s desire to do likewise, not only in relation to the activities of the executive but also into the stories of which sell their newspapers, i.e. the lives of celebrities.

As Jonathan Heawood, Director of the press regulatory body IMPRESS says: “It appears that the commercial interests of newspaper’s publishers are oddly aligned with the security interests of the government. Ideology undoubtedly plays a part in press positions on surveillance but is at least equalled by commercial considerations.”

This pretty well summarises the reasons why the IPA has not been subject to more vigorous scrutiny and it remains to be seen whether such protections, as still avail journalists under article 10 of the Human Rights Act, will be sufficient to ensure their continuing relevance as scrutineers of the use of Executive power.

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