Ministers have begun consulting on new surveillance powers which include the right to grab information in order to identify journalists’ sources.
The new draft codes explain how law enforcement agencies should use powers granted to them under the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016.
The codes have supposedly been beefed up in response to a judgment from the European Court of Justice after a challenge brought by Tom Watson MP.
But police can still grab journalists’ call records in order to identify their sources provided the request is signed off by a judicial commissioner.
The requests will be made in secret to telecoms providers.
The new rules update the existing regime. Since March 2015, law enforcement have required approval from a judge for telecoms records requests made to identify a journalistic source. This law was passed as a result of the Press Gazette Save Our Sources campaign.
Requests by law enforcement agencies and other public bodies to obtain details relating to phone calls, emails and text messages will be restricted to “serious” crime investigations under the codes.
But as serious crime is defined as any offence which could lead to a prison sentence of six months or more this will provide little protection for journalists.
Journalistic sources who talk to journalists can be investigated under suspicion of offences under the Bribery Act, Official Secrets Act and under the common law offence of misconduct in public office (all of which carry heavy potential jail sentences).
Security Minister Ben Wallace said the importance of communications data “cannot be overstated”.
He went on: “For example, it is often the only way to identify paedophiles involved in online child abuse and can be used to identify where and when these horrendous crimes have taken place.
“As this is an issue of public importance, we consider it important to consult on our proposed changes to inform our legislative response and subsequent Parliamentary debate.”
Assistant Chief Constable Richard Berry, National Police Chiefs Council lead for communications data, said: “In recent years we have seen over 700,000 items of communications data acquired annually.
“It is vital that our capacity to do so remains intact and fit for the future, while ensuring there is trust and confidence in what we do.”
Watson claimed the Government had made “significant concessions”, adding: “The current legislation fails to protect people’s fundamental rights or respect the rule of law. That’s what my legal challenge proved.”
National Union of Journalists campaigns coordinator Sarah Kavanagh said of the codes: “We are still concerned that there aren’t appropriate safeguard in place for press freedom and journalism.”
The consultation closes on 28 December 2017.