The recent admission that Britain’s Metropolitan Police Service – specifically S015 (Counter-Terrorism) division – is continuing its ‘investigation’ (or ‘scoping’) into alleged breaches of Section 58A of the Terrorism Act by persons or media involved in the 2013 Edward Snowden disclosures is intended to instill a ‘chilling effect’ on journalists in general (mainstream, bloggers, etc) as well as impinge upon the freedom of movement for specific persons – e.g. Laura Poitras, Glenn Greenwald, Jacob Appelbaum, Sarah Harrison. However, there are significant conceptual – if not legal – arguments (outlined below in section ‘B’) why this ‘investigation’ can be characterised as seriously flawed and subject to further legal challenges in the courts.
(Note: Appendix 1 provides a fuller transcript of the Q & A with Cressida Dick (Metropolitan Police service). Appendix 2 provides details of a submission by the Bureau of Investigative Journalism to the European Court of Human Rights re the UK’s surveillance of journalists.)
In response to an FOI request, a letter was received by Ryan Gallagher, on behalf of The Intercept, from Nigel Shankster (Senior Information Manager, Information Rights Unit, Information Law and Security, Metropolitan Police Service)…
The letter quoted from a Home Affairs Committee meeting with Cressida Dick (Metropolitan Police Service) confirming that an investigation was instigated in 2013 and that with regard to “The current status of the investigation into the leaked classified material. The MPS can confirm that it continues to conduct an investigation into the events as described above.”
In response to this revelation, Michelle Stanistreet, the general secretary of the National Union of Journalists, called on the police to “stop attacking press freedom.” She added: “Journalists who reported on the Snowden documents are not criminals, they are not a threat to national security.” Ms Stanistreet also said in a statement issued to The Intercept. “It is totally unacceptable that the authorities have spent the last two years considering whether they will prosecute British journalists reporting in the public interest.”
She added, poignantly: “They are trying to shake down and instill fear into journalists.”
Media lawyer, Mark Stephens agrees. However, he told The Intercept that he believes there is little realistic prospect of a prosecution being brought against any journalist on this matter and that he considers the authorities are more interested in creating a “chilling effect” to stifle reporting on secretive national security-related issues.
In other words the ongoing ‘investigation’ is about intimidation – not just of those journalists/researchers linked to the Snowden disclosures, but to any journalist/researcher who may report on ‘sensitive’ intelligence matters.
B. Arguments why prosecution not viable
Broadly there are four possible reasons why the ‘investigation’ – let alone prosecution – of journalists involved in the Snowden disclosures should not – or cannot – continue and be challenged in the courts.
1. The ‘in transit’ argument
The first reason relates to any journalist – in theory, any person – who is travelling from one country to another and happens to be in transit in a UK airport. Before we explain why this argument is valid, let’s first look at the well-publicised David Miranda case…
Mr Miranda was Glenn Greenwald’s partner and travelling from Germany to Brazil, carrying computer data relating to the Snowden disclosures. Former Guardian editor, Alan Rusbridger, later confirmed that The Guardian paid for the August 2013 flights taken by Mr Miranda and explained that Mr Miranda had been working as an “intermediary” (and, as such, was being employed in this capacity by The Guardian). At Heathrow Mr Miranda, while in transit, was detained for nine hours under the draconian Schedule 7 Counter Terrorism Act and with regard to existing powers to stop, question and search at ports of entry.
Mr Miranda’s legal team subsequently argued that his detention was unlawful: “The second ground is that the police had no jurisdiction to exercise the powers under Schedule 7 because those powers may only be used if the officer believes that the person’s presence at the port in question is concerned with “his entering or leaving” Great Britain or Northern Ireland, his travelling by air “within Great Britain or Northern Ireland” or he “is on a ship or aircraft which has arrived at any place in Great Britain or Northern Ireland”: Schedule 7, paragraph 2. The claimant’s contention is that the power does not apply to a person in the international transit area of a port or airport and that since Mr Miranda was in transit between Germany and Brazil when he was stopped, and had not passed through immigration, he was not entering or leaving the UK or travelling within it or on an aircraft.”
Mr Miranda’s legal team also argued that the exercise of power under Schedule 7 was unlawful in this case because it was not used to determine whether the claimant appeared to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism but in order to obtain material that may be sensitive or classified and which he did not possess lawfully.
The courts disagreed. Here is the initial judgement that was agreed by the UK courts regarding the detention of Mr Miranda and the seizure of his data files etc. Here is a submission on behalf of Mr Miranda arguing that in detaining him at Heathrow his human rights were violated. Here is another submission by Liberty, arguing that Mr Miranda’s detention was unlawful. In the end the courts rejected submissions to date and ruled that Mr Miranda’s detention had been lawful.
But then along came another case…
In March 2015 a case involving alleged terrorism was thrown out of the UK courts after the prosecution requested that the accused be found ‘not guilty’. This highly unusual case involved a Swedish national, Mr Bherlin Gildo, who was on his way from Denmark to the Philippines via Heathrow where in transit he, like Mr Miranda, was held under Section 7 of the 2000 Terrorism Act and (unlike Mr Miranda) was charged and jailed, pending trial. Mr Gildo’s defence team, led by Gareth Pierce, made it clear in a range of legal arguments that their client had only been in transit and therefore had not entered the UK of his own volition but had been ‘abducted’ by the British authorities (police).
In brief, the court found that Mr. Gildo’s arrest had indeed been illegal. The implication of this decision is enormous, theoretically affecting anyone in-transit from thence onwards. The Gildo ruling could also provide an opportunity for a further court action on behalf of Mr Miranda.
The decision in the Gildo case could equally apply, of course, to other persons associated directly or indirectly with the Snowden disclosures – e.g. Laura Poitras and Jacob Appelbaum – assuming that their flights involve in-transit only at a UK airport. Nevertheless, it would be unwise for any of these individuals to test this out before full legal clarification on this matter has been obtained via a UK solicitor.
(With Sarah Harrison, this is a different matter, as she is a UK citizen and if she wanted to return to the UK and not merely pass through an airport transit lounge, to do so safely would require guarantees in advance: these could be obtained by a solicitor, or by an NGO seeking a legal ruling, or via a ruling at the ECHR.)
2. The ‘850,000’ argument
At a Home Affairs Committee meeting (December 2013) Alan Rusbridger stated that “We were told that 850,000 people had access to the information that a 29-year-old in Hawaii, who was not even employed by the American Government, had access to”.
What he was explaining here is that not only did several hundred thousand persons have access to all the data Snowden disclosed, but that this patently proved that the entire NSA security system had failed in allowing so many individuals this level of access; also, that such a sheer number as 850,000 makes the prosecution of one single media outlet (or a handful of its journalists) an absurdity.
3. The British Government’s ‘approval’ argument
Again, from Mr Rusbridger at that meeting… “At the danger of repeating myself, we gave the material to The New York Times at roughly the same time as we told the Cabinet Secretary that we were doing that and gave the Cabinet Secretary the name of the editor of The New York Times and how to contact her….The material was given to The Washington Post by Edward Snowden himself via a journalist called Barton Gellman.”
Mr Rusbridger made it clear that when The Guardian passed on the Snowden data to The New York Times this was done after the Cabinet secretary (Number 10, Downing Street – hence the Prime Minister would have been informed too) had been informed that this would be done. In doing so – and given there was no attempt to prevent this sharing of data – it can be argued that the British Government gave its tacit – if not explicit – approval. Moreover, the Cabinet Secretary had every opportunity to intervene to try and prevent this data sharing – this did not happen.
4. The ‘Spycatcher’ argument
Mr Rusbridger once more… “I have bought this book along with me today. Some of you will be familiar with this. People will remember, in the mid-1980s, the Cabinet Secretary travelling to Australia to try to suppress this book that was written by a former MI5 agent and we had the ridiculous sight of a British Cabinet Secretary trying to stop the publication of something that had already been published in Australia. What was very much in my mind was the ridiculous situation that we would be in if The Guardian was the only publication in the world that was not able to publish material that was being published in Rio or Germany or around the world.”
He also added: “Glenn Greenwald had this material in Rio. Laura Poitras had a copy in Berlin. The Washington Post had a copy. The thought that this material would not have been published is ridiculous.”
The argument here is that in this global world of publishing, particularly online publishing, once a story or data has been published somewhere in the world, to try and prevent that story from being published in another part of the world, is meaningless. This is the reality of publishing – whether it be the Spycatcher book in the 1980s, or the Snowden revelations of more recent years.
For the authorities of one country to try to prosecute journalists or media owners for publishing a story or data that is already published later or simultaneously in another country, is legally nonsensical.
The four reasons given above, when combined, provide one very big argument as to why David Miranda should not have been detained; why journalists/researchers like Glenn Greenwald, Laura Poitras, Jacob Appelbaum or Sarah Harrison should not fear entering, transiting or returning to the UK; and why any journalist or blogger or researcher should not feel threatened merely for exposing information of public interest.
Moreover, it should be noted that in the two years since the initial Snowden disclosures, not one journalist at The Guardian – including Ewen MacAskill – who was one of the three journalists who interviewed Snowden at his hotel room in Hong Kong – or any other media outlet that published the Snowden disclosures – has been charged under the Terrorism Act or of any other offence in relation to these disclosures. The authorities clearly realise that to do so would not be in the public interest and, furthermore, would open the British legal system to ridicule. And to suggest that any of the journalists associated with the Snowden disclosures committed a terrorism offence is, bluntly, bordering on the ridiculous.
Also, since the Snowden disclosures there have been several cases – see here, here, here and here – where the surveillance practices of UK Intelligence – in particular GCHQ – have been shown to be unlawful, thus providing a very different political – and legal – context in which these disclosures and those party to them are viewed.
Finally, it should go without saying that the police in any so-called democratic country have no role to play in stifling journalism. Furthermore, the arguments above also serve to expose how flawed and dysfunctional the police and the CPS (Crown Prosecution Service) is in their dealings with and their understanding of the nature journalism in today’s world.
Clarity on these matters is urgently required – if necessary via further legal challenges in the courts by an appropriate body (e.g. the NUJ and/or Justice and/or Liberty) – for the MPS so-called ‘investigation’ is not only flawed, but as a mechanism for stifling journalism is contrary to legal provision, if not in the UK then certainly in relation to those standards set by the European Court of Human Rights, to which Britain is signatory.
Appendix 1: Q & A between Cressida Dick and Chair (entire doc here)
Q338 Chair: Is there currently an ongoing investigation?
Cressida Dick: There is an investigation ongoing into that material, sir.
Chair: Into the material but not into any individual?
Cressida Dick: We are scoping what the material tells us about who may have committed what offences and we are working very closely with the Crown Prosecution Service and others to understand that.
Q339 Chair: I am just wanting to establish it so it is fact. Is it a scoping exercise?
Cressida Dick: No, it is an investigation but it is into what the material tells us.
Q340 Chair: I am trying to be clear here. It is an investigation that is scoping the material.
Cressida Dick: In effect, yes, sir.
Chair: Right. I think I am clear. Mr Reckless, are you clear?
Q341 Mark Reckless: In a previous context it was explained to us the difference, I thought, between a scoping exercise and an investigation. The police make a distinction between those two. Which of those is this?
Cressida Dick: It appears possible, once we look at the material, that some people may have committed offences. We need to establish whether they have or they haven’t. We have an investigation to discover that, but that involves a huge amount of scoping of the material.
Q342 Mark Reckless: Can I clarify, is it the job of the police to investigate in this instance whether there has been a breach of section 58A of the Terrorism Act and, if so, the responsibility of the CPS to decide whether a prosecution would be in the public interest?
Cressida Dick: Broadly, yes. We take a very careful approach, as I have said, to any investigations into counter-terrorism or into the Official Secrets Act. The law is quite complicated, so the investigation is ours and we will continue with that investigation but we will and are taking advice from the Crown Prosecution Service about the law as we go forward.
Appendix 2: Submission by BIJ to ECHR
Here is the case document submitted to the European Court of Human Rights by the Bureau of Investigative Journalism.
Below is the summary of the case:
1. The application by the Bureau of Investigative Journalism (“BIJ” or “the Bureau”) and Alice Ross, an investigative reporter who has worked for the Bureau, raises important issues regarding journalistic free expression, the protection of confidential journalistic communications and the mass scale interception of communications in the United Kingdom under the Regulation of Investigatory Powers Act 2000.
2. The present application arises from the substantial body of information which has now come to light indicating that communications deemed “external communications” for purposes of the Regulation of Investigatory Powers Act 2000, are subject to mass scale interception, collation, storage and analysis by government agencies in the United Kingdom, notably Government Communications Headquarters (“GCHQ”). Furthermore, it is now apparently that the interception, storage and analysis of data concerns not only communications content but also includes “meta data” (e.g. data about communications). Importantly, technological advances in recent years mean that such metadata can be used and exploited in a way that is every bit, if not more, intrusive of confidentiality or journalistic free expression as the interception of, for example, the content of journalistic communications. This is because metadata can be subject to hugely powerful computer programmes which collate, link analyse and synthesise masses of data, enabling a sophisticated picture to be developed of an individual or organization’s network of contacts, sources, lines of enquiry as well as materials, subjects and persons of interest to them. Without rigorous and effective legal safeguards, it is plain that the use of these powerful technologies may now fundamentally undermine journalistic free expression in a way that could not previously have been envisaged.
3. The interception and exploitation of journalistic communications in this manner, in the absence of proper safeguards, may undermine the confidentiality of journalistic sources, materials and information, a necessary and basic precondition for press freedom in a democratic society. The threat to journalistic freedom of expression from mass interception of external communications is all the greater where journalists, such as the present applicants, are covering sensitive matters touching on issues of national security, counter terrorism or sensitive aspects of foreign policy. Here investigative journalism often relies heavily on human sources or data and material located outside a single jurisdiction. The Court has held on many occasions that it is “incumbent on the press to convey information and ideas on political issues, even divisive ones” (Ozgur Gundem v. Turkey, Merits, Application No. 23144/93 [§ 58]; and Lingens v. Austria, (1986) 8 EHRR 407 [§ 41]). By much the same token, it is also incumbent on journalists and the free press to report on matters which may be very sensitive, including matters touching on national security or the conduct of international affairs. Surveillance practices which inhibit the ability of the press to investigate and report in these areas call for careful scrutiny.
4. As detailed in the main body of the Claimant’s application the Applicants submit that the requirements of Articles 8 and 10 of the Convention are not satisfied by the United Kingdom’s legal framework for the interception of external communications and communications data (or “metadata”). The Applicants bring the present challenge in light of the press revelations, in the United Kingdom and across the world, about mass scale interception and surveillance of electronic communications by the United Kingdom’s Government Communications Headquarters (“GCHQ”) both for use by the United Kingdom’s intelligence services and for dissemination within government. The mass scale interception of data (both content data and metadata) is conducted using, inter alia, the Tempora programme and a range of other covert mechanisms. These programmes, mechanisms and capabilities are described in detail by Doctor George Danezis of University College London, Department of Computer Science in his witness statement.
In short, the Applicants submit:
a. First, that the conduct of the United Kingdom in relation to the soliciting, receipt, search, analysis, dissemination, storage and destruction of interception data in respect of “external communications”, in particular with regard to their impact on journalism and newsgathering organizations and their privileged information and communications, is incompatible with Articles 8 and/or 10 ECHR;
b. Secondly, that the conduct of the United Kingdom in relation to the soliciting, receipt, search, analysis, dissemination, storage and destruction of communications data (“metadata”), is incompatible with Articles 8 and/or 10 ECHR, with particular regard to its impact on journalism and privileged or confidential journalistic information including sources.
5. The Applicants therefore seek declarations that their rights under Articles 8 and/or 10 of the Convention have been violated and that the legal framework of the law of the United Kingdom in respect of the interception of communications under Section 8 RIPA 2000 and/or the legal framework pertaining to the interception of communications data under UK law does not comply with the requirements of the Convention in the respects set out above and costs.
 Section 20, Regulation of Investigatory Powers Act 2000.
 Godwin v. the United Kingdom (1996) 22 EHRR 123, [§ 39].