In a word, yes.
When news broke of the US Government’s wholesale request for data on Associated Press journalists,
The New Yorker quickly highlighted how US law allowed the Department of Justice to go straight to the phone companies, without notifying AP (although it’s own guidelines said this should not normally happen.) Because of this, there was no opportunity to test the justification for such a massive intrusion on the freedom of the press.
Ryan Gallagher writes on Slate:
“The AP incident involved the DoJ obtaining two months of reporters’ phone records, which listed outgoing calls for the work and personal phone numbers of AP journalists and editors. AP said in a report published Monday that it was not clear whether the records also included incoming calls or the duration of the calls, but noted that “the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.”
He goes on to highlight the same warning we made during the debate on the Communications Data Bill – it isn’t always necessary to see content to figure out enough of the picture.
“Typically, phone records obtained by the feds will show date, time, and duration of incoming and outgoing calls and/or text messages, according to the ACLU. While the data do not reveal the actual content of a call, they can be used to show a network of contacts and reveal relationships between people—information that is particularly sensitive for journalists working with confidential sources.”
Under British law, no external authorisation is required – it goes to a specially-trained officer, then a senior ‘authorised’ officer, all within the same police force doing the investigation. No court challenge is possible and you have no right to be informed about your communications data being accessed, even retrospectively when nothing has been found. Only local authorities – less than 0.5% of the annual requests for data – are required to seek external approval from a magistrate.
As we and the Bar Council, have previously highlighted, British surveillance law fails to recognise legal privilege, MP-constituent confidentiality or even medical confidentiality. Equally, protecting press freedom or the identity of whistle-blowers is not a factor, which is particularly worrying given the massively disproportionate investigation in Cumbria that was widely criticised.
As we have repeatedly argued, the existing regulation of surveillance in Britain is increasingly out of date and not fit for purpose. Preventing an AP-style investigation in the UK should be a priority of anyone committed to a free and open press.