By Anthony Mills
*This blog post is part of the Jean Monnet Chair of European Media Governance and Integration series
In May 2017, British Prime Minister Theresa May’s letter invoking Article 50 was handed to the president of the European Council, and Britain – to quote Nigel Farage – “passed the point of no return”. On that day, Brexit – involving for the first time in the history of the European Union, the exit of a country from that Union – was transformed from the abstract to the concrete, with all the uncertainty and precariousness across myriad sectors that disengagement from EU institutions, policies, frameworks, courts and rights entails.
There has already been much reflection on what Brexit means for the EU and Britain in the broader political, economic and judicial context. For instance, Theresa May has insisted that Brexit means a withdrawal of Britain from the jurisdiction of the European Court of Justice. While this has Brexit supporters cheering the suggestion that Britain’s laws will now be ‘made in Britain’ it also means that the health of Britain’s democracy is imperilled by a lack of integrated EU judicial oversight.
This threat manifests itself in multiple democratic human rights domains including privacy: In 2016, the European Court of Justice, the EU’s highest court, ruled that “general and indiscriminate retention” of emails and electronic communications by governments – including the British government – was a breach of law and that a court or independent body needed to authorise government access to retained data in each instance in which the government argued in an official request that this was necessary.
The original challenge (brought, ironically, by now-Brexit minister David Davis) questioned the legality of bulk interception of call and Internet records by the British intelligence agency GCHQ, revealed by whistleblower Edward Snowden in 2013. It referred to Britain’s 2014 Data Retention and Investigatory Powers Act (Dripa) but appears to apply also to Dripa’s successor, the Investigatory Powers Act, widely criticised by human rights and privacy organisations, and journalists, as representing a dire threat to privacy in general, and watchdog journalism in particular.
Guardian journalist Ewen MacAskill, who interviewed Snowden in Hong Kong together with fellow journalists Glenn Greenwald and Laura Poitras, and then broke, with them, the surveillance story of the century, says the Investigatory Powers Act means that Britain “now has the most intrusive surveillance in the Western world”. A broad array of press freedom and human rights organisations have warned that the new legislation represents a direct threat to investigative watchdog journalism because the surveillance it enshrines in law allows the government to relatively easily identify anonymous sources – upon whom watchdog journalism in a healthy democracy depends to hold powerful actors to account.
In a joint letter to the UN Human Rights Council, freedom of expression groups Article 19 and English Pen noted that the bill “lacks adequate protections for freedom of expression and privacy,” and “contains “powers that threaten to undermine these rights.” They added: “When [journalistic]sources cannot be sure of protection, the public loses its right to know critical information.” Section 61 of the bill on the acquisition of communications data “for the purpose of identifying or confirming a source of journalistic information” implies only a low threshold for interference, requiring simply “reasonable grounds” that a list of requirements has been satisfied. “This falls short of the requirement under Article 19 of the ICCPR (International Convention on Civil and Political Rights) that any interference must be necessary and proportionate.”
And in a letter to British Home Secretary Amber Rudd Britain’s Press Gazette, together with 4,000 signatories, warned: “Confidential journalistic sources and whistleblowers are the bedrock of a free, open and democratic society. But many will not risk providing information to journalists on matters of public interest unless their anonymity can be assured.”
Lest anyone suggest such fears are overblown, the willingness of the British government to pressure and harass investigative journalists and subject them to surveillance is evident in a paper by the authors of this blog, for the academic journal Big Data & Society on “The impact of legislative and structural attempts of surveillance on investigative journalism”. Interviewed for the paper, Guardian journalist MacAskill noted that for months after he interviewed Snowden in Hong Kong, Guardian journalist Ewan MacAskill (interview, 2 March 2016) was pulled out of the passport line every time he left the UK through Heathrow airport: ‘They would say, ‘‘Your passport’s been lost.’’ I said, ‘‘Well, it’s not lost, I haven’t reported it lost.’’ And then next time: ‘‘Your passport’s been stolen.’’ I said, ‘‘It’s not been stolen”… Every time it was a different reason.’ MacAskill’s experience aligned with experiences of other British journalists who covered the Snowden story. Notably, of course, editors of the Guardian were obliged to smash up computer hard drives containing Snowden material, in the basement of the newspaper offices, under the watchful eye of government agents from the GCHQ intelligence agency in what can only be termed a sinister for of intimidating harassment (since the government knew that copies of the material existed elsewhere, in New York and Brazil for example.
Alan Rusbridger editor of The Guardian when it broke the Snowden story, in an interview for the aforementioned Big Data & Society paper in which he discussed the dangers for journalism of surveillance in general and his newspaper’s treatment after it published the Snowden revelations, warned: “If you believe that the role of journalism is to hold people to account, to provide verifiable information, so that people know what’s actually going on, that someone’s going to challenge the official version of events… the more you inhibit that, the more you damage democracy.”
With the Brexit ball now rolling inexorably forward, there is a danger that even before Britain actually exits the European Union, the bigger Brexit picture will obscure the grave concerns surrounding the impact on watchdog journalism of intensified advanced surveillance legislation without parallel elsewhere in the Western world. After Brexit, when Britain has withdrawn from the European Court of Justice’s jurisdiction, the one entity which could have provided a supranational judicial check on Britain’s surveillance state will be branded as irrelevant as the concerns of those who argued that Britain should have stayed in the EU.