Police seeking to identify a journalist's source by accessing communications data will need the approval of a judge before going ahead under a new code of conduct, MPs have been told.
Security Minister James Brokenshire urged the Commons to agree to the new rules on communications data, which can be used by police and other law enforcement agencies to identify who spoke to whom, by what method, and at what time, but without accessing the content of a conversation.
- September 1, 2017
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The new measure is contained in one of two new codes of conduct dealing with the acquisition and retention of communications data. The codes are contained in statutory instruments which must be approved by MPs and peers.
The proposed law change follows the Press Gazette Save Our Sources campaign which was launched after it emerged in September last year that the Met Police had used the Regulation of Investigatory Powers Act to secretly view the phone records of The Sun and the paper's political editor.
Brokenshire said the measure would enact a recommendation by the Interception of Communications Commissioner Sir Anthony May. Last month a report by the Interception Commissioner revealed that police forces had viewed the phone records of 82 journalists over the last three years in order to identify sources.
The minister told MPs: "Communications data policy can broadly be split into two areas – acquisition and retention. Acquisition is carried out by relevant public authorities such as law enforcement agencies, retention is carried out by communication service providers.
"The two codes of practice we are debating today… set out the processes and safeguards governing the retention and acquisition of communications data. They are intended to provide clarity and incorporate best practice on the use of the relevant powers, ensuring higher standards of professionalism and compliance in this important aspect of law enforcement.
"One of the most important new safeguards, contained in the acquisition code, (is) that of access to journalistic material. As MPs will know, the Interception of Communications Commissioner recently conducted an inquiry into police acquisition of journalist's communications data.
"The measures contained in the revised code are intending to give effect to his recommendations which were accepted straight away by the Government.
"The acquisition code we are debating now now stipulates law enforcement must use production orders under the Police and Criminal Act 1984, or its equivalents in Scotland and Northern Ireland, when seeking to acquire communications data to identify or determine the source of journalistic information. We are doing this because production orders require judicial approval.
"This will help protect the freedoms journalists enjoy in the UK. Whenever law enforcement are seeking the journalist to determine sources – and this includes where police are seeking to confirm or corroborate other evidence of the identity of a journalist's sources – the decision on the application will be made by a judge.
"However, this is only a stop gap until we can make this change in primary legislation in the next Parliament."
Press Gazette, the Society of Editors, National Union of Journalists and Newspaper Society have all raised concerns that the measures, as proposed, do not go far enough.
The Government has previously indicated that only the telecoms providers – rather than journalists themselves – will receive notice of police requests to view their phone records. This means news organisations may not be able to argue against production requests, as they are currently able to do with police production orders for physical notepads or other journalistic material.