Planned Espionage Act would jail whistleblowers as spies
First published in the Register 10 Feb 2017
10 Feb 2017 Duncan Campbell
Proposals in the UK for a swingeing new Espionage Act that could jail journalists as spies have been developed in haste by legal advisors, The Register has learned.
The proposed law update is an attempt to ban reporting of future big data leaks.
The British government has received recommendations for a "future-proofed" new Espionage Act that would put leaking and whistleblowing in the same category as spying for foreign powers.
That threatens leakers and journalists with the same extended jail sentences as foreign agents. Sentences would apply even if – like Edward Snowden or Chelsea Manning – the leaker was not British, or in Britain, or was intent on acting in the public interest.
The proposals have been slammed by journalists who faced down British and US government threats after publishing Edward Snowden's sensational revelations in 2013.
"It is alarming that such a far-reaching proposed reform of laws which could be used to jail whistleblowers and journalists should have been drafted without any adequate consultation with free speech organisations", Alan Rusbridger, the former Guardian editor who published the Snowden revelations, told The Reg.
According to the commission, the proposed "redrafted offence" of espionage would "be capable of being committed by someone who not only communicates information, but also by someone who obtains or gathers it".
There should, it says, be "no restriction on who can commit the offence," including hackers, leakers, elected politicians, journalists, and NGOs.
If the proposed law had been in force in 2013, the Cabinet Office could have thrown Rusbridger in prison simply for handling copies of documents Edward Snowden passed to his reporters.
As it was, Rusbridger was threatened with a gagging order and jail, and forced secretly to destroy newspaper computers when the government tried to block the Snowden revelations from being published.
Although a US citizen and intelligence agency contractor, Snowden had wide access to secret reports and plans from Britain's electronic spying agency GCHQ through a top-secret, Wikipedia-style system called GCWiki.
Snowden copied tens of thousands of GCHQ documents from this system and gave them to The Guardian journalists who visited him in Hong Kong in 2013.
The dangers of 'public interest'
David Leigh, The Guardian's former investigations editor who helped handle the prize-winning Snowden and Wikileaks investigations, described the Law Commission's proposed changes as "a giant leap backwards to the bad old days when public-interest journalists went in fear".
Jim Killock, chief executive of the Open Rights Group (ORG), told The Reg: "Public-interest whistleblowing is vital to society. Without it no one could have known the secret scale of global surveillance".
In a new extension to the proposed secrecy law, official economic information could also be covered by the same heavy penalties. The Law Commission report asks, rhetorically, if "sensitive information relating to the economy [should] be brought within the scope of the legislation... in so far as it relates to national security."
Furthermore, British Embassies abroad, intelligence and security offices, and data centres not officially publicised by the government would be designated as "prohibited places" or "protected sites", making it an offence to publish information about them or to "approach, inspect, pass over or enter" for any "purpose prejudicial" to national security.
The report nowhere defines "national security". The commission claims that this is acceptable under current international human rights law. The proposed law would replace four Official Secrets Acts dating back to 1911, as well as a raft of other government restrictions on releasing information, providing extra powers instead. There should be no statutory public-interest defence for anyone accused of offences, the Commission say.
As if this isn't bad enough, the commission has admitted to The Register that its proposals were devised without meaningful input from rights groups or journalists. In doing so, the commission undermined its own claim to have consulted widely in preparing their proposals.
Consulting 'too much work'
Law Commissioner Professor David Ormerod QC claimed in a recent "exclusive" Daily Telegraph report: "We've scrutinised the law and consulted widely with... media and human rights organisations".
The report listed 21 government departments and police, intelligence and security agencies that were consulted, alongside 18 judges, lawyers and others – and three NGOs.
ORG was one of the three NGOs listed in the report as having being "consulted widely". However, ORG's Killock told The Register: "There was no consultation. There were some emails with our legal adviser about having a meeting, which petered out without any discussion or detail being given".
ORG's adviser was then told in April 2016 by Law Commission lawyer and Oxford University lecturer Karl Laird: "Over the summer we will be holding an open consultation asking for views on our consultation paper, so there will be that opportunity". But there was no consultation or further communication, according to ORG. The commission say that the job they were given proved too big to have time to talk to journalists and editors.
Killock described the commission's first fact-finding phase as: "Shoddy – they should have established the facts for their initial review by a wide inquiry, not by taking a lead from government security advocates".
National Union of Journalists communications officer Sarah Kavanagh said they were told nothing and were never consulted about the Law Commission review. "The first we heard was reading a [press report]", she said.
The Guardian told The Reg that it had been contacted last year, and then attended a short meeting at legal offices in May 2016 together with a Times adviser.
It was "high-level very general chat" without specific proposals. Laird promised the media lawyers that he would "keep [them] updated". There was then no further communication or discussion.
The Law Commission confirmed to The Register this week that most British NGOs concerned with human rights and free expression were not consulted about the review, including the Bureau of Investigative Journalism, the Centre for Investigative Reporting, Reporters Without Borders, Amnesty International, Article 19, Open Democracy, Privacy International, Index On Censorship and the writers group PEN.
A Law Commission spokesman told The Reg: "We had planned to consult in the summer, but... it became a larger piece of work than we anticipated.
"We undertook a pre-consultation fact-finding mission which informed and shaped our consultation questions and provisional conclusions. We... engaged with what we considered a wide range of stakeholders in an initial fact-finding mission who we felt could shape our initial thoughts".
He added that the report was not press released and was deliberately only initially provided solely to The Telegraph because "it's a nuanced issue. We wanted to secure an opinion editorial first".
The ball is in your court
The commission says its final recommendations will be "shaped by the views of those who respond to our open consultation, which is now open until April 3". They then expect to publish a revised report, which could include a first draft of an Espionage Act.
The changes to the law have been proposed following examination by the commission at the request of the Cabinet Office. Number 10 had asked officials to examine "the law surrounding breaches of protected government data" soon after the 2015 General Election and two years after The Guardian had published the revelations from Edward Snowden, transforming global understanding about the vast scale of secret electronic surveillance.
The Cabinet Office asked for "an effective and coherent legal response to unauthorised disclosures". The review was also intended to "examine provisions that criminalise those who illegitimately obtain or attempt to obtain official information".
The inquiry's terms of reference refer directly to large-scale data leaks, asking the commission to review "the effect of technological change on the way in which data is stored, shared and understood, and [to] determine whether the current law needs to be reformed properly to account for these changes".
The Law Commission agreed to "research potential improvements to these sanctions".
Because 21st century leaks are almost invariably digital, the commission claims: "The volume of information that can be disclosed without authorisation is much greater... this means that the ability to cause damage to the national interest has also increased.
"Before the digital era, anyone engaging in espionage would be limited as to how much information they could access. But now online communications and storage means the volume of information and associated risk is of a very different scale".
The sentences available should rise from 2 to 14 years imprisonment, the commission suggests.
Rusbridger told The Reg: "The consultation paper is very one-sided. The Law Commission must urgently consult more widely – and act more independently".
The Cabinet Office refused to say whether a draft Bill would be requested or legislation intended. "As the work is ongoing and no final conclusions have been made, it would be inappropriate to comment."