Sunday, December 5

How a draft law on secrecy would recast journalism as espionage | Duncan Campbell and Duncan Campbell

Hbefore we go again. Almost 50 years ago, one of us was arrested under the Official Secrets Act for working on a story for Time Out magazine, where the other was the news editor. This led to the so-called ABC case, named after fellow reporter Crispin Aubrey, a brave ex-whistleblower named John Berry, and the aforementioned Campbell. A lengthy trial at the Old Bailey followed in 1978 and, with it, a great discredit of the act’s use against the press.

Soon after, the power of WWI, the empire-age laws of secrecy sank further when a jury acquitted the late Clive Ponting, a senior official who sent information to MPs about government deception during the war. of the Falklands. Rush legal reform failed in 2004 when evidence against GCHQ whistleblower Katharine Gun had to be withdrawn at the last minute. The government feared that his trial would reveal that he had been told the Iraq war would be illegal.

The Interior Ministry now wants stricter and more extensive secrecy laws that would have the effect of deterring sources, editors and reporters, potentially making them subject to uncontrolled official bans not approved by a court, and punished much more severely if they do not comply. In noisy political times, a government inquiry issued two months ago has received very little attention. While they are described by state actors as countering hostile activity, the new laws, if passed, would trap journalists and sources whose job it is to report “unauthorized disclosures” that are in the public interest.

Endorsed by the Secretary of the Interior, Priti Patel, the query He argues that press statements can be worse than espionage, because the work of a foreign spy “will often only benefit a single state or actor.”

Asking parliament to consider “an increase in maximum sentences”, the Home Office states that there is now not necessarily a “serious distinction between espionage and more serious unauthorized disclosures”, including “subsequent disclosure” in the press. Journalism could even create “much more serious damage” than a spy. However, the 66-page document does not mention “journalism” once, and refers only to “subsequent disclosure … without authorization.”

A new proposal from the so-called civil orders would create “a power of last resort that would allow [the government] impose a series of restrictions on certain people ”. The orders “could include a series of restrictive and preventive measures, including measures to prevent a person from associating with certain people or visiting specific sensitive places” and should “be imposed by the executive and not by the courts.” The orders would create “a significant deterrent against those who may be vulnerable and susceptible to coercion and influence from a foreign state.”

The process began in 2016 when the Legal Commission, a statutory body that reviews the law in England and Wales, began working to “protect official data”. claiming reforms were needed “To bring the law to the 21st century.” The changes were allegedly justified because of the ability of “hostile states” to carry out cyberattacks and because the potential impact of espionage and leaks had increased.

The commission’s initial proposals in 2017 did not attract much attention until an article in The Register, the online technology publication, told readers that “proposals in the UK for a new Espionage Act that could imprison journalists as spies have been hastily developed by legal advisers.” The article noted that the proposals would place leaks and allegations of wrongdoing in the same category as espionage for foreign powers, and that leakers and journalists could face the same extended jail terms as foreign agents. The sentences would apply even if, like Edward Snowden or Chelsea Manning, the perpetrator of the leak was not British, was not in Britain, or was acting in the public interest.

The Legal Commission had neglected to consult extensively with the media or with freedom of expression organizations. After the article appeared, there were press protests across the political spectrum, from the Daily Telegraph to the Guardian to the Daily Mail. An avalanche of criticism from NGOs and press and media organizations, such as the National Union, followed. of Journalists; the public consultation was expanded.

Slower due to the impact of Covid-19, the Law Commission revised proposals published last fall. They recommended that “a legal defense of public interest should be created for anyone … including civilians and journalists, who can be trusted by the courts.” Journalists and sources should not be condemned if it is in the public interest that the recipients know the information disclosed. A statutory and independent whistleblowing commissioner “should be established to receive and investigate reports of wrongdoing or crime.”

The Interior Ministry wants to scrap these proposals because they are not “the right balance in this area.” The idea that any unauthorized disclosure of official data could be in the public interest should not be possible, he says. He scoffs at the idea of ​​whistleblower protection, asking for “any evidence … why would the government’s existing whistleblowing processes require the creation of a statutory commissioner?”

Nor, he says, should a whistleblower be allowed to argue that he acted in the public interest. One of the main changes is to expand the scope of prosecutions. “For public servants,” according to the proposals, “infractions should no longer require proof of harm, as is currently the case. Instead, they should require proof of a sufficiently culpable state of mind, which means, for example, proof of the defendant’s knowledge or belief that disclosure would cause harm. “

The maximum prison sentences that could be imposed on editors or sources (currently two years under the Official Secrets Act for unauthorized disclosures) would be multiplied to an unspecified higher level.

Responses to the new proposals are being sought before July 22. If editors, journalists and advocates of an open society fail to highlight the dangers and stop, the government’s current authoritarian and enthusiastic approach could allow press freedom to remain silent.

  • Duncan Campbell is a former Guardian journalist. The second Duncan Campbell is the author of the aforementioned 2017 Registry article and an investigative journalist specializing in civil liberties and surveillance, and was indicted in the 1978 trial.

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