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Journalists hit back with anti-spying legal challenge

A journalism organization is alleging that the UK government's surveillance program is in breach of international law.

HackingA not-for-profit investigative journalism organization is legally challenging the British government, alleging that broad surveillance powers, including capturing journalists’ communications with foreign sources, are in breach of international law.

The Bureau of Investigative Journalism (BIJ), based in London, filed documents on Friday with the European Court of Human Rights. The Bureau is seeking a determination on the legality of how government agencies use a 14 year-old British law to intercept, collate, store and analyze “external communications”.

The Bureau is a reputed source on British and American drone strikes in Pakistan, Afghanistan, Yemen and Somalia whose work has been cited in academic research and by United Nations investigators. BIJ reporters regularly email, telephone and Skype call with foreign sources – exactly the kind of “external communications” that may be picked up by government agencies. The Bureau argues that the content of journalists’ calls and emails, as well as the how-when-and-where (also known as metadata), are “routinely” collected and analyzed by UK officials to build a picture of sources, contacts and story lines.

The collection of such information, according to the Bureau and its legal team, violates rights to privacy and freedom and expression and is having chilling effect on journalists who routinely report on global issues. The Bureau alleges that those engaging in public interest journalism are owed strong protections, including the right to protect a confidential source.

While the Bureau and its legal team do not question the legitimacy of the UK government’s program, the Bureau believes that the power as it relates to journalists is too broad and that it lacks oversight.

“No one knows anything about what GCHQ does with the journalistic information it pulls in,” said Gavin Millar QC, one of the lawyers working with the Bureau, in a statement. “This is because, startlingly, neither the legislation nor government guidance about its use says anything at all about this.”

“The way in which our state security apparatus is using the journalistic material it collects is in flagrant breach of these basic human rights norms,” said Millar QC.

The Bureau’s application follows revelations by former NSA contractor Edward Snowden, which publicized troves of confidential details indicating “mass scale interception and surveillance of electronic communications” by government intelligence agencies across the world, including the United Kingdom’s Government Communications Headquarters (GCHQ).

In an age when more and more journalists are increasingly nervous about digital security, protecting legitimate communications is more of a hot button issue than ever.

A recent report in the US by Human Rights Watch and the American Civil Liberties Union reflected a growing unease within the journalism community around government surveillance. Journalists interviewed for the report told the authors they were made to feel like criminals and spies with the security techniques they’re forced to adopt to protect sources and sensitive information.

The USA Freedom Act, passed by the US House of Representatives in May, strengthened reporters’ rights within the US, but neglected to include any protections for foreign sources subject to US surveillance.

As part of a commitment to global, collaborative journalism, ICIJ is currently building a prototype, funded by the Knight Foundation, of a secure communication tool for reporters to work together and share information safely and efficiently. The first prototype of the Global I-Hub is expected to be available to ICIJ’s members in early 2015.

ICIJ reporter Will Fitzgibbon was previously employed at BIJ.

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