Freedom of the press will not be safe in the UK under new domestic surveillance laws unless more legal safeguards are put in place, journalists say.
Their calls fall on the 800th anniversary of freedom of the person enshrined by law under the Magna Carta, and follow the release of a landmark report on the bulk surveillance of British citizens last week by Britain's spying watchdog.
The Magna Carta has become synonymous with limitations on government power. But as they stand, current domestic spying laws are "undemocratic, unnecessary and – in the long run – intolerable," concluded, David Anderson QC, Britain's independent reviewer of terrorism legislation, in his report A Question of Trust.
A 2000 law called the Regulation of Investigatory Powers Act (RIPA) "has been patched up so many times as to make it incomprehensible," he wrote. His main recommendation is that the law be scrapped and a new one made. It would ensure judicial authorisation both for interception warrants relating to journalists, and the identity of their sources, and for public authorities seeking communications data relating to journalists.
Prime Minister David Cameron responded to the report by rejecting its proposal to strip ministers of the power to authorise spying on UK citizens — including journalists. On the whole the government responded to the report in the House of Commons by indicating the law will be overhauled with a draft bill appearing in the fall.
For journalists, "it's a matter of how the mechanisms are put in place," said Sarah Kavanagh, a senior spokesperson for the National Union of Journalists (NUJ) referring to its calls to get judges as the only ones signing off surveillance order.
Also in Anderson's recommendations, she said, he makes no mention that journalists should be alerted that their phone and Internet records are being sought, nor suggests a process to appeal their seizure.
"If you don't get told, you have no chance to challenge that," she said. The NUJ broadly welcomes the report and the government response, Kavanagh added.
But the case of Tom Newton Dunn, political editor of The Sun, who had had his phone records seized during the "Plebgate" scandal in September 2012, she said, throws into sharp focus why further legal safeguards are needed.
The scandal broke when Conservative MP Andrew Mitchell, then Government Chief Whip, called police officers at Number 10 "f*****g plebs" when they wouldn't open a gate for him.
Surveillance powers were used to seize Newton Dunn's records after he received leaked police logs confirming the event from the Met. The phone tap was used to trace the leak back to its source in the police department. The NUJ warns that these powers could be used to discover other whistle-blowers.
If Anderson's recommendations are followed to a T, without an appeal process, Kavanagh said, Newton Dunn would still be left in the dark that his records were being sought and have no way of fighting back. She also raised concerns about the lack of oversight even when a warrant is sought and called for this to also be strengthened.
On 4 November 2014 Sir Paul Kennedy, the interim Interception of Communications Commissioner, said that his office is only able to review about 10% of the domestic surveillance warrants filed by police.
"I've done one full-blown investigation since July," he told the Home Affairs Select Committee's RIPA Inquiry. "I'm not going to say there haven't been cases where journalists have been the target of an investigation," Kennedy said.
"What I would like to happen is journalists say what protection they need, and what the police say what they need in order to do their job."
Journalists are now telling them, said Santha Rasaiah, director of legal, policy and regulatory affairs at the News Media Association (NMA) which promotes media interests to government.
"The NMA welcomes the recommendation to scrap RIPA," Rasaiah said, "but would press the Government for further safeguards, including restrictions on surveillance powers," and for journalists to be notified when their records are sought and a process of appeal to be set up.