The News of the World scandal just keeps getting bigger, dirtier and more depressing but how did it get to the point where it felt OK to hack into the phone calls of murdered children and traumatised families such as the Dowler’s and others (possibly many more others than we currently know about)?

The media is a very competitive business. You are generally only as good as your last programme or your last newspaper article. Your producer or editor is constantly breathing down your neck for a big story, a great feature, information that your media competitors don’t have.  You should not underestimate the affect this pressure has on the average human being. It’s fairly basic psychology. A young reporter or television producer is conscious that his or her job is always vulnerable. There are plenty of bright people gagging to take over and if you don’t perform you’ll find your contract won’t be extended or you won’t get that great reference that will gain you entry to the next contract.

An editor doesn’t necessarily demand an employee break ethical and legal boundaries to get a story but all too often they will turn a blind eye if they are getting good results. More likely they don’t even ask where certain information has come from. They want the headline; they want the circulation figures or the ratings to rise. They are also under intense pressure from above.  All the way up to the shareholders.  The truth is the media is a business dictated to by the demands of the money-men.  Higher figures = high profits. Simple.

So that reporter or producer lies awake at night trying to work out how to deliver the increasingly impossible – a scoop of major proportions. Maybe they discuss it with their mates. Maybe someone says, ‘don’t you know how easy it is to get inside information?’. Maybe someone knows how to do it and offers to help. Maybe that reporter or his/her line manager takes up the offer to see what it can achieve. Maybe they say to themselves ‘just this once’.  Maybe it got great results, a strong lead or exclusive information. A pat on the back from the boss, smiles all around, extra booze at the office party. What a buzz that would give you, right?  You have single-handedly improved the figures, made everyone at work smile and the boss look fondly upon you. With positive feedback like that how are you going to resist trying the same technique again?

Maybe the buzz dies down, the pressure returns, the boss had forgotten your scoop. The media has a very short memory. Remember you are only as good as your last story and your last story has disappeared into the mists of time. Today news is wrapping tomorrow’s fish and chips.  So what are you going to do? Use that private detective who was so helpful last time. Didn’t hurt last time. No harm in trying it again.

What about your conscience, the ethical considerations?  Well let’s assume the person or people responsible had reservations in the first place. A psychologist may refer to cognitive dissonance. Quite simply if you do something bad you will experience a conflict in your mind. “I am good. I did this. This is bad”. Can’t be both. So the mind works to reduce the conflict. If you carrying on do the bad thing, your mind starts to justify it. And once you’ve done it a few times, then your mind forgets its reservations. It’s become all part of the job.

So who’s to blame? The reporter, producer or department head for trying to hang on to their job or impress the boss?  The boss for putting the team under such pressure to deliver? The chief executive for failing to understand where such pressure may lead? The shareholders for insisting on a profit?

Maybe you are a shareholder of a media conglomerate. Maybe you should take some responsibility too!

In short being a manager of a team in the media requires real strength of character, a sound moral backbone, the patience to understand what your team is doing and how, the confidence to resist the kind of pressure that could leads to mistakes. Mistakes that can and do and have ruined and even lost lives. Think twice before uttering those immortal words, “I don’t care how you do it, just do it!”

Nobody should feel that breaking the law and messing with other peoples’ lives is the price to pay for a job in the media. It’s just not worth it.  Your integrity, your sense of self-worth is important. Hang onto it whatever the cost.

We at covert pr never discuss clients or who they may be, or who they may not be. I would not even want to venture an opinion on how we could help an organisation like the News Of The World in it’s current situation. We cannot work magic with pr, but given time we can nudge opinion and sway people’s thoughts, this then has a direct impact on decisions taken further up the tree.

So lets discuss a hypothetical newspaper that has been accussed of phone tapping. How could and would we at covert pr look at helping a client who gave us a brief to limit the damage on this hypothetical paper. Remember we are never interested in who our clients are. In fact we prefer not to know who our clients are. We do not sign a contract. We do not invoice. We get paid in advance for a fixed period of time and work. If the client wishes to continue their relationship with us they just drop off another sum of cash and we work to their brief. Just like a local newsagents, we take cash and just like a local newsagents we will not need your name and address when you pay 50p for a chocolate bar. We pay tax just like a newsagents. But we are not a registered limited company, we dont advertise, we dont promote ourselves. If a client assigns us they will remain 100% anonymous, because we don’t even know who they are. And just like a barrister we do not choose which clients we take or refuse, we accept all clients, whatever their aims and their brief to us. The only tasks we decline are those that are opposed to other tasks we may be working on.

For example, if you remember Rwanda several years ago before the internet age. It would have been quite possible to be given a brief by an anonymous client to sway and nudge public knowledge and opinion away from having an interest in Rwanda, confuse the message and news that got to the public, distort the news and information coming out of Rwanda and so stifle and suffocate an public outcry for intervention. We would in effect be pulling out all the stops to 1. Ensure information is confusing and contradictory about the situation in Rwanda, and 2. Sway the public opinion away from being interested in Rwanda and also sway them from wanting to get involved on a National Level. We would kick start all our engines to ensure this was done to the best of our ability on a World Wide basis. If another client then came to us and asked if we could work in the opposite direction to get reliable news to the public and create a movement for intervention, we would be unable to do this. It would clearly not be ethical to work for ‘both sides’.

Of course if they came to us at the same time, it would come down to dollars and the fee.

Let us go back to phone tapping at our fictional newspaper. The power of public opinion has already swayed several advertisers to pull out of advertising with The News Of The World. Mumsnet made the decision after being swayed by its members. Co-op were ultimately swayed by its members (customers and staff), Halifax Bank, Ford and Lloyd’s Bank have also been swayed by public opinion.  How do these organisations find out the opinions of their members, customers and owners? Through e mails, calls, phone-ins on tv and radio, blogs, forums, chat rooms, comments and feedback through media/news sites and their own company websites. Once they measure public opinion they make a decision about how to act, and have now started to withdraw advertising worth millions.

Covert pr has the ability to create visible public opinion, and sway/nudge real public opinion as a consequence. Ideally the work would have started a few weeks ago, and the work would have also ensured that there was a lot of doubt about the facts and muddying of the water with counter rumours, and rumours of rumours etc. Backed up with our influence on mainstream media an organisation like ours could make a difference. We would ensure that Ford, Mumsnet etc would receive a different message, and then because they received a different message we could sway them into another decision.

The steps would look a bit like this: 1. Confuse the news. 2. Create news. 3. Create public opinion. 4. Sway and nudge public opinion. 5. Therefore sway and nudge the decision makers.

At the same time we would strongly advise anyone who has been hacking mail boxes, whether related to NOTW or anyone else, destroy all evidence now before they are pulled into the fire.

It will be interesting to see what happens, but millions in advertising will be lost and our fee to help such a situation would be measured in the tens of thousands of pounds. A six figure fee for our work in such a situation would be unlikely. Our fee’s are usually around the £10,000 a month mark, which provides us with the resources to influence opinion and ultimately actions. For a newspaper in trouble, a country trying it’s best to stifle an uprising, a leader who is trying to avoid his country being bombed, a controversial mexican or russian businessman or a mining/logging/oil company trying to exploit resources in the third world it is a small price to pay when you consider the overall picture of the sums involved.

If so they are out of control – and responsibility has to lie above just the individual reporters – it can’t be as widespread as this without it being cultural and being evidence of a fundamental lack of management control. Criminal proceedings may well only take place against actual law breakers but the organisation and its executives have to take responsibility too.

News International are part of this too – and it has to bring into question the fitness of the organisation to have an increased section of the media market in the UK – the proposed SKY deal must be delayed until after the investigations are complete (and in my view, probably part of the price they should pay for their indisgressions).

And now newspaper balance – in an era where Russell Brand and Jonathan Ross were pilloried for a phone call/radio show in seriously bad taste – where does this rank ?

I suspect from a coverage perspective nowhere near as widely as it could – very few media outlets or politicians want to take on Murdock (apart from perhaps Labour who still feel abandoned after the last election), and of course we don’t know whether any other newspapers were doing similar things. Although there will be coverage, expect it to be less critical than you would expect!!

Generally I find the whole thing is very bad taste and I hope the NOTW are punished where it hurts, by advertisers and readers, in revenue terms – it is the only real message that will definitely cause a reaction.

So I leave you with the thought that I’m going to complain to the NOTW, in obviously the most efficient way, by leaving a voicemail message on my phone!!

Last night the story broke which alleges that Milly Dowler’s phone was hacked following her disappearance and murder.

The reaction has been universal disgust and shock, but are we really surprised?

For too long the tabloid press has been a wild, unruly pack that has run amok. Always looking for a fresh victim, they harass people, search through their rubbish bins, and illegally access mobile phones messages.

Currently, they are controlled by the Press Complaints Commission and voluntary agreements. The power of the tabloids is such that Governments are terrified of upsetting them, fearful that the attack dogs turn on themselves. Thus over time, the power of the national print media has grown, and it now takes the form of an ugly and hideous monster.

This must stop.

The European Human Rights Act includes conflicting articles – the right to the freedom of speech and the right to a private family life. Recently this has been tested, as celebrities have used super injunctions to prevent stories about affairs being published. Do injunctions and super injunctions prevent the freedom of speech? This is what newspaper journalists have argued strongly.

We all value freedom of speech. However, do the tabloids use their investigative resources to tackle corruption among the powerful who influence our lives? Do they uncover large scale corporate tax evasion, the size of which could pay for entire hospitals? No. They use their resources to tell us who A N Other footballer is sleeping with, including sleazy photographs and titillating details. They tell us what the Heads of multi-national sports do at private parties.

In truth, tabloid journalists mostly don’t give a stuff about genuine corruption, they want to feed the endless thirst for the cult of celebrity and titillation. They want to sell newspapers.

Of course, some journalism of recent times, such as the revelations of MP’s expenses was important and valid, as was the corruption among FIFA officials. However, most journalism in our tabloids lacks this validity.

The tabloids ruin lives. Jo Yates’ landlord in Bristol was named and shamed, and his character was entirely assassinated before being released without being charged. Someone else has since been convicted of Jo’s murder. The Sun went after Colin Stagg with a ferocity that was incredible. He was innocent. The tabloids perform your character assassination on pages 1, 2, 3, 4 and 5 and then apologise in three lines on page 34 in between the adverts for surgical stockings and incontinence pants.

What is needed is regulation of the print media with real teeth, and hard penalties to be applied when they really damage the lives of the innocent. This can be done without stopping the genuine work to root out the sort of corruption that is in the interests of the people of Britain to expose.

The public also need show their own teeth. If the Milly Dowler case is proven, hitting that newspaper in the pocket is fastest way to get the change required.

If reporters showed their political colours openly, stating quite clearly that they are reporting from a certain stand point then their views would have a degree of legitimacy which they don’t have by claiming to be completely open and unbiased. A lot of Television stations now have a political agenda and should be open and honest about where they are speaking from, your cannot say I am being fair and open but then continually attack one side or another.

The freedom which the press enjoys is because they should be reporting facts openly and honestly, but if they are just political mouth pieces then they have no legitimacy and should not enjoy freedoms which are embedded in law. Truth has a price, open and fair reporting is good for democracy, but, if we criticise state controlled Television as just the mouth pieces of corrupt states, then that criticism can be turned back on multinational corporations who have a political agenda. Do they have the right to tell us how to live our lives, how to vote? They are no longer a free press, they are merely a means by which to manipulate people’s views and opinions along a certain path.

Money can buy many things but surely our thoughts should be free to make decisions which can be of immense importance to everyone in the world, not just told you should vote for the party of their choice, not one of your own. Freedom is a precious commodity, do not let people with vast sums of money destroy it because they think what they are doing is right, it may be they are right but you have to allow people to make their own decisions from the facts presented to them.

Newspapers, radio and Television stations should state that the NEWS they are putting before the public is being presented from a certain political stand point, then it it is fair and reasonable. That is all I ask for, Honesty!

Secondly, here are some pics so you get the full flavour of sitting through three and a half hours of what amounted to a win for News of the World and a loss for the Committee.

Here are Hall, Anderson & Watson:

For myself, I’m worried about this:

and feel like this:

(Be warned: if you have poisoned my Suki, or if your dog has savaged him, I will find you and remonstrate with you in a not-so-English-way. I might even be so bold as to accidentally-on-purpose kick you in passing or trip you up with my walking stick, you f*cking animal poisoners and you ‘ho-ho-lets-see-what-we-can-catch-tonight-and-throw-in-the-bin’ dog-owners’. Witless degenerates).

In the meantime, if regular readers would like to see a video of Coulson answering the Committee, please visit Swiss Bob at the Daily Politics.

Twitter breaks the super-injunction

There is the mass of speculation now surrounding these so called Super Injunctions. For those who are not versed in legal jargon, the super injunction is a legal way to prevent publicity about your private life.

If someone has a private conversation, even in a public place, do they still have a right to privacy? What’s the difference between lipreading a private conversation and listening in on a phone call? Why, in other words, are we outraged when a national newspaper admits that it has been tapping the phones of famous people, but not when the world’s media decides to ‘listen in’ on these intimate private conversations?

Is it because they take place on the public stage, so the rules of privacy don’t apply? Is it because these people know about the possibility of being ‘heard’, so they are implicitly recognising that their actions are available for public consumption? Is it because the distinction between public and private does not exist anymore? Is it because ordinary life has become a Big Brother studio, and we all accept as part of the ‘social contract’ that every word we speak might be picked up by a hidden microphone?

Don’t worry – I’m not pretending to be outraged myself. I’m just curious about where the ethical line is: What’s public? What’s private? And why is it that we are quite happy for some private truths to be exposed to public scrutiny but not others?

Holly Watt reports on some of the great lines (and here I am, happy to repeat them…):

“Yes, it looks fantastic, it’s beautiful,” he added, according to Ruth Press, who has been deaf since birth and works as a forensic lipreader.

Prince William also cracked a joke to his father-in-law at the altar before the royal wedding ceremony, saying: “We’re supposed to have just a small family affair”.

The joke by William to Michael Middleton in Westminster Abbey was spotted by Tina Lannin, lipreader for O’Malley Communications.

So if you’re an Arsenal fan, you’re probably a little concerned that The News Of The World is claiming that Jack Wilshere is going to be the subject of a £40m offer from the Middle East/North of England. Every tabloid writer’s new favourite England player is supposedly going to be offered £100,000/week to sacrifice his career to the Arab Oil Money Vanity Project.

Right, so the obvious caveat is that it’s The News Of The World reporting this, and as such it’s probably complete balls – but you have to think that it wouldn’t take much more than £40m before Arsenal Board of Directors started seeing their pupils flick to dollar signs.

On another, non-football related note, how satisfying is it to see the NOTW get a bit of pasting in the courts? You have to think that given the ease and speed with which they threw their former employees under the bus, that the potential damages in this case is far in excess of £20m. Also far in excess of £20m is the revenue gained off the back of the stories that they have illegally obtained – so maybe put the hand slightly deeper into the News International pockets.

The explanation why I reported download is simply because I imagine you must get it that way. Don’t get a CD or any other software in a retailer, principally simply because you want to make positive that the computer software you get is totally up-to-date to today’s software models on the phones. This is the cutting edge technological innovation that is designed and is a result of the comprehensive testing of system that eliminated the use of hardware apps to completely enjoy the monitoring course of action. Any Nokia cell phone can now be turned into a prime-superior surveillance gadget that you can use to know all the conversations of your associates, partners, kids,lady buddies, partner and any individual.

The target phone or the a single that would be monitored will have no mark that it is a spyphone. The computer software is entirely concealed and there will be no sound made when you consider to turn on or handle the computer software. It arrives in a.sis file that is easy to set up. You just have to know the cell mobile phone range and IMEI number for the duration of the acquire course of action. Its like a cellphone tap software program and the computer software can efficiently be employed for eavesdropping the mobile phones.

You can continue to keep an eye on whoever you want to monitor remotely because of this spy software package which has spy SMS. With this breathtaking software program you can effortlessly spy gsm phones. If you genuinely want to spy on the mobile of your girl pal or wife or husband then you will need to search at this wonderful spy store.

If you want to do some mobile tapping then this guide is just for you. I’m going to go around how you can go about covertly mobile tapping a cell phone so that you can see every thing it is carrying out. The way that it operates is easy: you set the system on the cellular phone, and then it will relay all the information and facts back again to you by way of the online. You will see wherever they are (GPS information) streaming in, and you can actually see them on a map. The other things is simply accessed by means of the program and you can “explore” the telephone and see all the logs, which include all messaging that they sent and acquired and phone calls built.

Which Mobile Tapping Software package to Use?

Don’t buy something that desires to be shipped to you on CDs. The purpose why is since you will most likely have to update the software package anyway – so you could as well get the software package now promptly by downloading it. That way you can be sure it is up-to-date to the newest edition. tap phone

Don’t acquire a CD or any other software package in a retail store, largely because you want to make certain that the software package you get is entirely updated to today’s software program designs on the phones. If you discover one particular that isn’t up to date then you may possibly have to deliver them your CD and wait for them to respond to you, or some thing else that will just waste your time. Avoid this by going with downloadable software package that is by now up to the market place specifications.

A mobile cell phone will no longer be a normal mobile phone due to the fact of the spy software package that could be put in in it. This is the cutting edge technological innovation that is developed and is a result of the in depth testing of program that eliminated the use of hardware programs to totally like the monitoring procedure. Any Nokia cell cell phone can now be turned into a prime-high quality surveillance gadget that you can use to know all the conversations of your close friends, partners, children,woman friends, husband or wife and any one.

The target mobile phone or the a person that would be monitored will have no mark that it is a spyphone. If you want to do some mobile tapping then this write-up is just for you. I’m going to go over how you can go about covertly cellular tapping a cell phone so that you can see all it is carrying out. This is getting more and more quick as the technologies enhances. With some great technologies you can easily see in which the mobile phone is by means of GPS information, and what the cell phone is engaging in (like simply call logs, contact details, text messages, and so on.) So let’s get into it under and come across out how you can start off tapping a mobile phone.

How Do Mobile Tapping Software programs Do the job?

There are bodily packages and software based ones. I always advocate that you go with the latter due to the fact they’re less complicated to use and are considerably far more reliable. You will see where by they are (GPS information) streaming in, and you can literally see them on a map. The other things is quickly accessed by means of the plan and you can “explore” the cellphone and see all the logs, which includes all messaging that they sent and acquired and cellular phone calls manufactured.

Which Cellular Tapping Computer software to Use?

Don’t buy something that needs to be shipped to you on CDs. tap phones

part 1

Part 2

The “prankster” behind these recordings is Ian Murphy of the Buffalo Beast.

These recordings establish quite a few facts.

Fact #1 Walker and Koch, even though the share the same politics, are not “in bed” with one another as the Democrats suggest. (If they were close political back room game players Walker would have immediately known that the man on the phone was an impostor through voice recognition.)

Fact #2 Walker is sticking to his guns, which we knew all along.

Fact #3 The union could be in legal trouble, has Walker pointed out if the unions are paying or providing for the Democrat Senators who fled this would violate a conflict of interest and would be an attempt to circumvent the work of the state, these have legal repercussions.

Some possible scenarios.
Ian Murphy could have possibly placed himself in legal trouble, not by recording phone conversations but by impersonating someone else in those conversations, not a fictional undercover character type but a real person, David Koch. This could be a form of identity theft.
It wouldn’t surprise me if Ian were to hear from Koch’s attorneys sometime soon, Koch could have a case on his hands and he may or may not pursue it.
I know if someone misrepresented himself as me before government officials I would be livid.
In Murphy’s interview with Salon.com he hopes that Koch sues him.

Personally I don’t think this is going to turn into anything but what Ian Murphy did do was put himself and his website on the national radar.

Some startling figures tumbled out on rampant phone tapping in the country when telecom service provider Reliance Communications told the Supreme Court on Monday that the authorities had asked it to tap 1.51 lakh phone numbers in a five-year span between 2006 and 2010.

This works out to an average of over 30,000 telephone interceptions every year by a single service provider on the orders of various law enforcing agencies. Or, over 82 telephones were intercepted every day by a single service provider.

Reliance is the second-largest service provider with a subscriber base of 12.57 crore as in 2010. The biggest service provider, Bharti Airtel, had 15.25 crore subscribers in 2010, while Vodafone’s subscriber base was just a shade lower than Reliance’s at 12.43 crore. State-owned BSNL came fourth with 8.67 crore subscribers.

If Reliance’s ratio of phones tapped to the number of its subscribers were to be taken as representative and applied to other service providers, it is a fair assumption that government agencies were tapping more than one lakh phones every year.

TOI treads lightly on the powerful. Other newspapers were more straightforward in their reporting. Law et al News reported:

Reliance Communications Monday [sic] filed an affidavit before Supreme Court denying all allegations levelled against it in the Amar Singh illegal phone tapping case. The Anil Ambani promoted telecom company claimed that Joint Commissioner Delhi Police and Deputy Secretary, Home were informed about the tapping of Amar Singh’s phone number but the letter was not replied or responded to.

In the previous hearing of the case, Supreme Court bench of Justice GS Singhvi and Justice AK Ganguly had questioned as to whether [sic] the concerned officers (Joint Commissioner) were informed of the tapping? Because if he was informed he would have objected in view of the fact that no such request had been made and the case would have come to notice [sic] of police at that very time.

The bench had also raised doubts on [sic] the company’s credentials for acting on letters having many spelling and grammatical errors and on a communication which prima facie appeared to be a fake document. The letters were later proved to be forged on investigation by special cell of Delhi Police.

The Kolkata Telegraph ran this story:

The Supreme Court today asked the Centre why it had not cancelled Reliance Infocomm’s licence for tapping Amar Singh’s phones on the basis of “forged” letters riddled with grammatical errors that should have aroused suspicion.

“If this type of (forged) order is acted upon by a service provider, no person in this country is safe. Every moment, he risks surveillance by an unscrupulous service provider,” Justice G.S. Singhvi, part of a two-judge bench, said.
…
Justice Singhvi expressed concern at such laxity in tapping procedures and pointed to its perils.

“Tapping is a special power intended to be used in extraordinary situations for the object of protecting state security. There are several master forgers. They can always present such authorisation letters, asking the phone line of the army chief to be tapped and diverted to some terrorist organisation or a foreign country,” he warned.

The court had stayed the publication of the tapped conversations on a plea by Singh.

But since then, the Centre for Public Interest Litigation has been seeking a vacation of the stay saying the conversations were with public servants.

On November 11, 2010 I submitted a complaint to the OmbudsmanNT about Northern Territory Police accessing my personal telephone records.

The police investigation was part of a ‘witch hunt’ to try and identify the anonymous NT Police sources I quoted while reporting for the NT News on a drug squad raid at Darwin Lord Mayor Graeme Sawyer’s house.

The report can be downloaded by clicking on this link:

OmbudsmanNT final report

Or read the an edited version of  OmbudsmanNT report below.

Commissioner John McRoberts

Dear Mr O’Brien

RE: Complaint against Police

I refer to your written complaint to this Office dated 11 November 2010, regarding the Northern Territory Police accessing your mobile phone records without your permission or knowledge and your request to investigate whether that conduct was unlawful or not.

I accepted your request not to have the Ethical and Professional Standards Command (EPSC) deal with your complaint and my office made enquiries.

BACKGROUND

As you are aware on 20 October 2010 the Northern Territory Police executed a search warrant at a house situated in Wagaman. An NT News article written by you about this search, published on 21 October 2010, stated that information had been provided to the media by a police source.

That information included the identity of the owner of the house at Wagaman which was information not released to the media by NT Police.

The Police received a complaint from the home owner dated 27 October 2010 regarding leaked information. The EPSC had prior to that date launched an investigation to find the

Darwin Lord Mayor Graeme Sawyer

Police Officer responsible. The Ombudsman was notified of the complaint from the homeowner on 5 November 2010.

The actions of a police officer providing information to you was a breach of Section 155 of the Police Administration Act. It was also potentially an offence under Section 76 of the Criminal Code:

’76 (1) Any person who, being employed in the public service or engaged to do any work for or render any service to the government of the Territory or any department or statutory body thereof, unlawfully communicates confidential information coming to his knowledge because of such position is guilty of a crime and is liable to imprisonment for 3 years.

(2) If he does so for purposes of gain he is liable to imprisonment for 5 years.’

If an offence was committed by a police officer providing information to the NT News the person obtaining that information could also have been guilty of the same offence as an accomplice, inciter, abettor or procurer.

A155 Communication of information

(1) A member shall not, without reasonable cause, publish or communicate any fact or document to any other person which comes to the knowledge or into the possession of the member in the course of his duties as a member and which the member has not been authorised to disclose.

Multimedia Journalist - Justin O'Brien

Penalty: $1,000 or imprisonment for 6 months or both

First CCR search — 19 October — 22 October

On 21 October 2010 a Senior Constable from the Operational Intelligence Section (015) completed a Request form which was allocated to another Senior Constable from the Drug and Intelligence Division. The Request was for CCR and RCCR records for the period

19/10/2010 to 22/10/2010 for your mobile 0401442440. On 22 October 2010 the acting Officer in Charge of 015 authorised the request.

The Authorisation was electronically sent to Optus on 22 October 2010. Unfortunately the officer completing the electronic request made a clerical error and entered incorrect information into the document citing that the CCR and RCCR information was for an investigation into offences contrary to the Misuse of Drugs Act.

This incorrect information appears to have no effect on the Police meeting the Commonwealth requirement for Authorisations. The request accurately recorded the enabling legislation (Section 178(2)).

Subsequently, Police noted their error and corrected their records identifying section 155 of the Police Administration Act as the reason for seeking the carrier (Optus) records. They also advised Optus of the mistake to ensure that no record existed linking your phone number as having some connection with the misuse of drugs.

The Police on obtaining your phone records determined the name of a Police officer believed to have breached section 155 of the Police Administration Act. Details for phone numbers showing on your records were sought from the carrier to identity the subscriber to that number.

The search of your charge records to this point was limited to a four day period during which it appeared that a Police officer provided information to you. Your records identified a Police officer’s phone number. The records showed two calls from your number to the officer’s and one call to you from the Police officer.

The first call on the records between the two numbers showed that the contact was initiated by you.

Ms Richards found NT Police acted 'unreasonably'.

I am satisfied that the records and evidence show that the first search of your call charge records was lawful and was reasonably necessary for the investigation of suspected offences. Those offences could have been breaches of Section 155 of the Police Administration Act, a breach of Section 76 of the Criminal Code and possible breaches of Sections 12, 43BG, 43BH, 43B1 or 104 of the Criminal Code. Further investigation by NT Police to find out who used the phone sets matching the subscriber numbers was warranted.

The Second CCR search — 22 September 2010 — 27 October 2010

On 28 October 2010 a Senior Constable from 01S, sent another request for your records. The request was only for your CCR records, ie, records of whom you called, not who called you. However the period was expanded seeking records from 22 September 2010 to 27 October 2010. The authorising officer was the Territory Intelligence Coordinator (TIC). The electronic Authorisation for your records was sent on 01/11/2010 to Optus. The Authorisation was given by a Senior Sergeant whom I am satisfied had a lawful delegation under the Telecommunications (Interception and Access) Act.

Also on 28 October 2010 the Police applied for and obtained CCR’s (22/09/10 to 27/10/10) for a Police officer believed to have been responsible for the information leak.On 5 November 2010 this officer was interviewed and on 8 November 2010 the officer was disciplined (section 14(c) of the Police Administration Act) for not reporting contact with you.

Investigation Outcome

This investigation revealed that the Police made two (2) applications to Optus to obtain your CCR’s, the initial application included obtaining your RCCR’s.

I have seriously considered your view that Section 180(4) of the TIAA – Authorisations for access to prospective information or documents – applies to Section 178. Section 178 is the section of the TIAA that Police relied upon to obtain your records.

Prospective information (as referred to in section 180) is not defined within the Act, however it was described by NT Police as accessing real time data. In researching a 2007 submission to the Senate Legal and Constitutional Affairs Committee I found prospective data being described as information that comes into existence during the life of an authorisation. The Telecommunications (Interception and Access) Act 1979 Annual Report for the year ending 30 June 2009 describes prospective data as data that comes into existence during the period for which the authorisation is in force. It does not include data that came into existence before the authorisation was in force. The disclosure of prospective data may be authorised by a criminal law-enforcement agency when it is considered reasonably necessary, by an authorising officer, for the investigation of an offence with a prison term of at least three years.

The seeking of your phone records in the second instance (starting from 22/09/2010) was in my view unnecessary. At the time of this second request the Police Officer believed to be responsible for the ‘leak’ had been identified. You had identified yourself in the article you wrote as a possible accomplice.

The Police informed me that the second search of your CCRs was to find out what communication occurred between the Officer and you before and after the calls on 20 October 2010. They said that you and the officer connected to the number you called on 20 October might have been close friends regularly in touch which would tend to dilute anything sinister about the calls on 20 October. I was also told that it was necessary to have the records to be ready to challenge the officer concerned when he was interviewed in case he claimed to be regularly in touch with you as a friend. I reject that latter explanation as a sufficient reason justifying the extent of the records requested.

The officer concerned was interviewed three days before Optus provided the CCRs which causes me to discount the ”friendship” defence as a sufficient reason. I also consider that even if the CCRs for a five week period showed that your phone and the officer’s phone were connected often, such records would not prove who made the calls and what was said. Those records for a five week period were not capable of disclosing anything of probative value beyond what  had  already been obtained by the first search.

Although I am satisfied that the second search of your CCRs was lawful and authorised under Section 178 of the Telecommunications (Interception and Access) Act that search was ”unreasonable” within the meaning of Section 101 of the OA. Police have powers and they have a discretion to decide when and how to exercise those powers. They also have a duty to respect the human rights and dignity of the citizens they serve and protect. There must be a balance maintained and intrusive powers ought not to be exercised unless it is reasonably necessary to do so. In the instance of the second search of your CCRs for a period of five weeks it is my opinion that the intrusion into your privacy was not reasonable even though it was lawful.

The Commissioner of Police disagrees with my view. His view is that the second request to Optus was in accord with “standard investigative techniques … to establish whether contact between parties is an ongoing occurrence and whether there is a pattern to the conduct…”.

I have not accepted that view in your case because any contact between you and a police officer prior to the execution of the warrant, on 20 October 2010, was of no relevance to an alleged offence of unlawful disclosure of an event which happened on one occasion only, on either 20 or 21 October 2010. I have given the Commissioner of Police my reasons for the view I hold and I include an extract of my letter to him:

“In my opinion to access phone call charge records for a period of three weeks before the event which precipitated the offence under Section 155 of the Police Administration Act was unreasonable. It was in my view unreasonable because any interaction or communication between Mr O’Brien and any police officer prior to the execution of the warrant on the house in question was not capable of producing any evidence that could logically have carried any probative value. Citizens of the Northern Territory have a human right to privacy, recognised by International Conventions and Declarations, and to some extent recognised by the Common Law.

There was no proportionality between the seriousness of the offence being investigated, the value of any information likely to be obtained and the degree of invasion of Mr O’Brien’s human right to privacy. It is the failure to balance the value of his rights against the outcome sought or potentially available that amounts to the exercise of the discretion to access his records being, in my view, unreasonable. In many other cases the investigative techniques you describe might well shift the balance and make the needs of law enforcement or prevention of harm reasonably override a person’s right to privacy. I do not believe it was reasonable to do so in this instance.”

RECOMMENDATIONS

I made four recommendations to the Commissioner of Police. The Commissioner of Police has accepted two of them as follows:

1. The Commissioner of Police will issue a general order to make it patent that access to a person’s telephone call records must be authorised by a member of the rank of Superintendent or above.

2. The Commissioner of Police will issue a new authorisation under the Telecommunications (Interception and Access) Act replacing the exiting authorisation of Commissioner Paul White authorising only officers of the rank of Superintendent and above only to make requests for telephone call records under the Telecommunications (Interception and Access) Act.

I note that you have approached my office concerning a response from NT Police to a request by NT News under the Information Act for the release of documents. It is correct that under the Information Act documents obtained by EPSC to investigate a complaint against Police that is covered by the Ombudsman Act are exempt from disclosure. That exemption arose first when NT Police notified the Ombudsman of the Lord Mayor’s complaint on 5 November 2010. No document before that date would be covered by the exemption of documents and information created or obtained under the Ombudsman Act.

Other exemptions may be applicable but not the exemption created by Section 49C of the Information Act. I do not know what documents were requested under the Information Act and I cannot investigate any matter arising under the Information Act unless it is referred to me by the Information Commissioner.

If you require any further information please contact the Assistant Ombudsman, Bert Hofer.

I advise that the notice served relating to disclosure of the draft of this report remains valid.

It does not apply to this report.

CAROLYN RICHARDS

Ombudsman

In the late 1960s, I remember the London magazine Time Out reported that MI5 was listening in to all diplomatic telephone calls via a telephone exchange in (if memory serves me correctly) Kensington. A computer was scanning all calls and listening-in for keywords. This sounded very futuristic back then.

When the extremely right wing and, in my opinion, neo-Fascist Tony Blair was Prime Minister, he had no problem attempting to create profoundly anti-democratic laws. I remember one bright idea he had (never actually implemented) was to detain known football hooligans to prevent them going to a match if the police believed they might be thinking of perhaps planning to commit a crime. In other words he believed it would be OK to make Thought Crime an imprisonable offence.

Yet the one thing he was strangely opposed to throughout his Orwellian reign was allowing intercepts – phone taps – to be used in evidence in criminal trials. This continues to fascinate me. Why would he object?

He claimed that allowing intercepts to be used in evidence in open court would expose their origin. But, if we are talking about phone tap evidence, what is the problem?

Criminals know that anything they say on a telephone line may be legally and perfectly reasonably intercepted. They know that already. Everyone knows that. So saying in court that evidence has come from a wire tapped by the police or security services is not ‘revealing’ anything. It would only be revealing a hidden source if evidence had been collected and intercepted in some way other than from a wire tap… in which case, of course, the security services would not want to reveal that they had access to that unrevealed form of interception.

So what could that unrevealed and secret form of intercept be if it were not traditional phone tapping?

Telephones are two-way communication devices with built-in microphones. They are transmitters as well as receivers. You no longer need to install listening devices at telephone exchanges to tap phones. You can remotely make the microphones in the handsets active and thus listen in to anything said in a room. Most people have telephones in their living rooms and often their bedrooms; these can listen to and transmit anything said in the rooms. People with mobile phones not only carry transmitters with built-in microphones everywhere they go, but they are carrying GPS devices which can pinpoint their position to within a few feet.

But this is merely a variation on traditional eavesdropping. Would that really be why Tony Blair was so wary of the security services having to reveal in open court what their intercept sources might be?

I remember back in the late 1960s or early 1970s – certainly more than 30 years ago and before the really vast advances in computer development – a Cheltenham taxi driver called Barry Prime was tried in camera under the Official Secrets Act on charges which were never made public. The Sunday Times reported at the time he had told the Soviets that Britain’s GCHQ and America’s NSA had a satellite in (I think geostationary) orbit over the Soviet Union which could listen in to all above-ground communications – listening for keywords in all phone calls sent via the normal microwave system, walkie talkie calls, radio phone calls between, say, a Politburo member in his car and someone sitting in the Kremlin and possibly even a politician sitting in his office talking to his secretary on a wireless intercom. As a result, the Soviets buried all their sensitive communications in landlines, the West lost invaluable intelligence and Barry Prime was sentenced to a staggering number of years in jail (and seems to have been wiped from history and thus Google searches).

Journalist Duncan Campbell also got into trouble in 1985-1986 for revealing that GCHQ intended to launch a SigInt satellite called Zircon.

At one time, one of the words you were never supposed to speak on a telephone line in the UK was the word “Echelon” because it triggered all sorts of intelligence computers listening-in for keywords. Presumably if you mentioned “Echelon” AND “Burlington” AND “Turnstile” or even “Corsham”, then the eavesdropping computers would have had an orgasm of excitement. If, way back then, you had also mentioned “Stockwell”, “Site 3″ and “Hawthorn“, then the Men in Black would probably have been sitting in a car outside your house the next day.

Modern satellites’ cameras can read the markings on the epaulettes of a soldier standing in a field outside Vladivostok or travelling in an open Jeep in Iraq. It is not beyond the realms of possibility that satellites which, more than 30 years ago, could listen in on all above-ground electronically-transmitted voice chatter can now listen-in to all human voice communication on a small area of the surface of the earth – let’s say the whole of the UK – and filter out bird song, traffic noises, water sounds etc to leave only the sounds created by human voices… and then to listen-in for keywords.

There was a saying in the late 1960s: “However paranoid you are, they’re always doing more than you think.”

What if any conversation on any street, in any room could be listened-in to by a satellite? What if anything you say out loud can be heard by the computers?

Plus ça change.

Though, in fact, I don’t object.

It’s a fact of modern British life.

The British public have no real objection to street security cameras. So why object to blanket voice surveillance?  After all, it was us who created 1984 not some foreign johnny. All e-mails leaving or entering the UK are scanned; presumably all blogs are scanned; presumably everything on the World Wide Web is scanned because the Internet was originally a military project.

If Google can do it, then I certainly hope Echelon, GCHQ and the NSA can do it.

And let’s not even start to think about Google Street View.

The News of the World phone-tapping scandal just gets bigger and bigger and now with News Editors being confirmed as aware of the hacking of celebrity voicemails, it’s unthinkable that Coulson did not know what was going on.

And if he was really unaware of what his team was doing to get stories then what kind of editor was he anyway?

There are some high profile cases coming up against the News of the World by Steve Coogan, Sienna Miller and George Galloway who all allege that phone tapping was used against them while Andy Coulson (David Cameron’s press officer) was editor of the ‘paper’.

Whilst I doubt the impending Sheridan action will have any impact whatsoever on his sentence in the perjury case, it will be interesting to see if the answers given by Coulson at the (perjury) trial may come back to haunt him in the coming months as they are quoted back to him.

Here’s hoping.

*This essay was actually written in 2009 but I felt the need to dig it out and have a look following all the Wikileaks and News of the World phone-tapping stories. In light of recent events I’m particularly enjoying the quote:

“In the US, whistleblowers are treated as heroes who save the taxpayer money. In the UK, they are scorned and silenced.” (Brooke 2007 p61)

_______________________________________________________

“We are subjected to the production of truth through power and we cannot exercise power except through the production of truth.” (Foucault 1976 p93)

This essay seeks to analyse the true impact of the implementation of the Freedom of Information Act and also that of government whistleblowers. We will mainly concentrates on the UK FOI Act, as this is the act the Westminster government is subject to, and is also more problematic than the Scottish Act.

“The UK Act probably has more in common with the FOI laws of Zimbabwe than those passed 200 years ago in Sweden.” (Brooke 2005 p40)

One of the ways in which we can evaluate an information policy is on the circumstances in which it came about. The US FOIA was seen by many as a reaction to the Watergate scandal, an effort to make government more transparent and less susceptible to corrupting forces.  (Brooke 2007, p31) In the UK, the FOI was part of the manifesto of Tony Blair’s New Labour, in their 1997 election landslide. Following the series of scandals endured by the previous Conservative government, the electorate was encouraged by this seeming commitment to transparency.

“The reality is that MPs in opposition are eager to champion the cause of freedom on information; once in power their eagerness fades dramatically. The Labour Party made passage of an FOI law part of its election Manifesto and published a very liberal White Paper soon after it was elected in 1997. The bill was not introduced, however, for two more years, during which time the government came to dislike open government…The minister responsible for the White Paper was sacked and responsibility went to Jack Straw in the Home Office, a department not known for its liberal thinking. Soon the government had abandoned its 1997 Manifesto promises and Jack Straw fought successfully to weaken the 1997 White Paper.” (Brooke 2007 p32)

The government also delayed implementing the Act for four years, supposedly to give public bodies time to prepare. It has been suggested that this time was more likely used to destroy potentially damaging information. The government themselves were questioned about an increase in shredding of documents during this time, but insisted it was purely coincidental. (Brooke 2007 p36)

The introduction of the FOI Act was a major part of the Labour party’s election manifesto. However, when it came time for it to be passed into law the government seemed less eager to publicise. Scotland has it’s own FOI Act and Information Commissioner and is credited with having a stronger act than the rest of the UK. Scotland’s Information Commissioner Kevin Dunion spent £369,000 on promoting the introduction and also set up workshops to teach citizens how to utilise it (Brooke 2007, p23). While this may not seem like a lot of money, it was still more than the £218,000 spent by his counterpart Richard Thomas (Brooke 2007, p9), who has had his term as Information Commissioner to the rest of Britain extended until June 2009 (Information Commissioners Office 2009).

The FOI Act’s relation to existing law has also been subject to unusual treatment. Generally, new legislation overwrites existing. However:

“…government officials were so worried about freedom of information they created an exception whereby the old laws had precedence over the new. They are a major obstacle in advancing openness. They are also superfluous in light of the many and broad exemptions in the FOIA.” (Brooke 2007 p15)

One other major problem is the existence of the ministerial veto. This means that any information deemed by an MP to be too sensitive to publish is only one signature away from being consigned to the echelons of official secrecy. Despite recommendations that the veto be removed, Lord Falconer, the Lord Chancellor and Secretary of State for Constitutional Affairs, has insisted it remains (Bindman 2004 p53). It is also worth noting that if the ministerial veto is related to national security, not even the Information Commissioner himself can overturn the ruling (Brooke 2007 p51).

“…’national security’ has become a completely devalued term, trotted out whenever someone in authority wants to avoid potentially embarrassing material reaching the public. But resorting to such drastic measures for every minor embarrassment makes it difficult to determine when something actually is a matter of national security.” (Brooke 2007 p98)

The law provides an absolute exemption to the security and intelligence services. This covers the Security Service, the Secret Intelligence Services, Government Communications Headquarters (GCHQ), Special Forces, the Security Vetting Appeals Panel, the Security Commission, the National Criminal Intelligence Service, and tribunals set up under these bodies (Brooke 2007 p51). The government claims these exemptions are vital to the protection of the nation, despite the fact that Canada, New Zealand and the United States – the largest military power in the world – do not exempt the security services from their FOI Act (Brooke 2007 p44).

“The exemptions provide an excuse for not providing pretty much anything. Reading through the list, it soon becomes clear that the law is principally designed to protect politicians from public scrutiny.” (Brooke 2007; p44)

Aside from the national security exemption, two other exemptions have been much criticised by campaigners for more freedom of information. These are both qualified exemptions, meaning they are subject to a public interest test. In discussing the public interest test, Brooke states:

“…with a forceful Information Commissioner and officials who believe in FOI, it is possible that UK law could provide a strong right to know.” (Brooke 2007 p45).

However, as has already been mentioned and will be discussed in greater detail later, UK Commissioner Richard Thomas has so far not proven himself to be committed to maximising the potential of his office and of the Act itself.

The first of these two criticised exemptions is Section 35, which prohibits scrutiny of policy-making. The government claims that completely revealing their decision-making process to the public at large would prohibit free and frank discussion. Freedom of information campaigners were joined by the House of Lords in their condemnation of this inclusion to the Act.

“Lord Lucas said: ‘Here we have a government who say that they want much more openness in public affairs but when we reach the part of the Bill where their own affairs are concerned, they are quite clearly determined to stay rooted to the spot and even to go backwards’ (HL 3R, 24 Oct 2000, col 279).” (Brooke 2007 p48)

Section 36 deals with information “prejudicial to the effective conduct of public affairs”. When proposed by the government this exemption was also the subject of much concern and derision from both campaigners and the House of Lords. At the time they were given reassurance from the government that Section 36 would only be used in special cases but in reality the opposite has proven true.

“…it has become a favourite, along with section 35.” (Brooke 2007 p49)

In certain cases, if a citizen or journalist is denied information on the grounds of a qualified exemption they can appeal to the Information Commissioner to have the ruling overturned. The only recourse to the use of an absolute exemption is to argue the exemption does not actually apply to what you have requested to see. Given that the appealer will not have actually seen the information, this is very difficult to prove (Brooke 2007 p50). It is also not unknown for an applicant to be told:

“…it’s against the public interest to state the reason why withholding the information is in the public interest!” (Brooke 2007 p44)

Although the Information Commissioner can intervene and overturn rulings using qualified exemptions, so far UK Commissioner Richard Thompson has seemed loath to do so. In October 2005 Thompson already had a backlog of 1,500 cases.

“Working at its fastest monthly decision-making rate – 16 in July – it will take the Commissioner’s office more than eight years to clear the backlog.” (Brooke 2005 p43-44)

Writing in 2007, Brooke again complains about Thompson’s slow rate of decision-making and also suggests that he seems much less willing that Dunion, his Scottish counterpart, to adjudicate on exemptions, instead focusing on complaints over procedural issues (Brooke 2007 p13-14). It is worth noting that Dunion is required by Scots law to make a decision in four months or less, while Thompson has no time limit at all. (Brooke 2007 p23)

Not that complaints over procedural issues are not serious in themselves. One of the most endemic problems with the Freedom of Information Act is authorities not responding within the suggested 20 working day time limit, with central government departments being especially lax (Brooke 2007 p11). Although there are no legal ramifications for those who do not respond in time, Thompson does have the option to name and cause public embarrassment to them. This is not an option he has used. (Brooke 2007 p13)

The Commissioner himself is supposed to update appealers to exemptions on their case every 28 days. In most cases this is not happening, and citizens who take it upon themselves to question the Commissioner on the stage of their case run the risk of being labelled ‘vexatious’. (Brooke 2007 p12-13)

These are just a few of the problems with the FOI Act, whole chapters of books, and books themselves have been dedicated to picking apart its intricacies. Other hurdles faced by those seeking greater accountability include the fee structure laid down by the government to prevent overspending. Although so far there is no charge for making requests – although there are those in government who would readily support one (Brooke 2007 p39)  – the cost of answering a request cannot be higher than £600 at central government level, and £450 for other bodies (Brooke 2007 p23). While it may be argued this is only fair, the actual accounting behind this charge has been called into question and it is arguable that as taxpayer money was used to create the documents, it is unreasonable to ask citizens to pay twice (Brooke 2007 p39). The UK act also allows bodies to refuse to release information on the grounds that they are planning to publish it in the future, but no time limit for publication is set. Under the Scotland Act there is a twelve-week limit (Brooke 2007 p23) Even once information is released, it can still be subject to strict copyright (Brooke 2007 p17).

It was widely reported that upon entering office, current President-Elect Barack Obama would be forced to give up his self-confessed Blackberry addiction, as his emails would then be subject to disclosure under the US FOIA. It has already been suggested by campaigners for freedom of information in this country that government ministers are attempting to circumvent FOI law by cutting down their use of email, and conducting their most sensitive business over the phone. Obviously, phone calls made by government ministers are not generally recorded, and are therefore not covered by the law. This has significant implications not only for the public’s right to know at the present time, but also in the future, as no records of how certain decisions were reached will exist.

The use of private contractors to carry out government work is also an area of some controversy. The government insists contracting out means greater competition and more opportunity to save the taxpayer money. However, it can be difficult for the taxpayer to discover how their money is actually being spent, as the law does not make clear how much transparency these private companies are expected to uphold.

Even in the USA, where information laws are much stronger and further reaching, the increasing use of private contractors in work previously done by government employees is a cause for concern.

“As one commentator has noted: “Consigning the provision of municipal functions to private organisations is akin to asking the wolf to guard the hen house. The private administrator will make decisions based upon what is best for the company, not what is best for the public at large.” “ (Davis & Splichal 2000 p95)

Another major problem with our FOI Act, and similar acts the world over, is that completely private companies are totally exempted from the law. This means that massive corporations, such as Nike and Disney, who have resources which dwarf that of some nations can operate in almost complete secrecy.

“…Joel Bakan notes that corporations are legally obliged to maximise returns for shareholders. Company executives are literally compelled to subordinate all considerations to profit:

The law forbids any motivation for their actions, whether to assist workers, improve the environment, or help consumers save money…As corporate officials…they have no legal authority to pursue such goals as ends in themselves – only as a means to serve the corporation’s own interests, which generally means to maximise the wealth of its shareholders. Corporate social responsibility is thus illegal – at least when it is genuine. (Joel Bakan, The Corporation, Constable, 2004, p.37)

…This, Bakan notes, makes the corporation essentially a ‘psychopathic creature’, unable to recognise or act upon moral reasons to refrain from harming others (ibid., p.60).” (Edwards and Cromwell 2006 p2-3)

While many of the transgressions of such companies have been recorded and analysed by writers such as Bakan, and Naomi Klein (2000) it is fair to suggest that there have been many other incidents that we as public citizens have not, and may never be made aware of, while the damage to our society and ourselves continues unchecked. While corporate owners argue that transparency of this kind would leave their business vulnerable to outside interests, and that such a law would be unworkable, it is worth noting that when it came to protecting themselves, with universal copyright laws, big business managed to find a way to work together.

“Leaking is a means used to push opinion in one direction or another, a case-by-case flaunting of security restrictions that must be tolerated in our society.” (Davis & Splichal 2000; p210)

No matter how much transparency is afforded by law, it is likely there will always be cases of wrong-doing that are only apparent to those on the inside of an organisation. This is why those referred to as “whistleblowers” are essential to true democracy. Despite obvious similarities, there is an important difference – in perception if nothing else – between those who leak information, and those who ‘blow the whistle’.

“Generally speaking, whistleblowing is an act of dissent. Researcher Bill De Maria gives the following more specific definition. Whistleblowing is:

-       an open disclosure about significant wrongdoing

-       made by a concerned citizen totally or predominantly motivated by notions of public interest

-       who has perceived the wrongdoing in a particular role

-       who initiates the disclosure of her or his own free will

-       to a person or agency capable of investigating the complaint and facilitating the correction of wrongdoing.” (Martin 1998 p89-90)

The truth is that the leaking of government information by signatories to the Official Secrets Act (OSA) is commonplace. Andrew Marr has stated that government ministers have suggested to him that the best way to get journalists to pay attention to information they may otherwise have ignored, is to leave it

“lying next to a photocopier with ‘secret’ stamped on the cover”  (Marr 2004; p146)

Comedian and journalist Mark Thomas recounts in his book As Used on the Famous Nelson Mandela: Underground Adventures in the Arms Trade how MP Tess Kingham violated the OSA by allowing him access to sensitive government information.

“Inside her office she declares: ‘Do you know, I am getting more and more forgetful as I get older. I keep leaving government documents lying around on my desk. I am just going to the loo, I’ll be about thirty minutes.’ With that she gets up, moves some papers on her desk and departs.” (2007, p77)

The documents in question related to an arms deal between Royal Ordinance and Morocco, despite the government having vowed not to become involved in the troubled Western Sahara region. The leak bears resemblance to The Sunday Telegraph case of 1971, where Major-General Henry Templar-Alexander passed on information about the government’s secret support of Nigerian forces in their conflict with the Biafran forces.  Although the resulting court case did lead to an embarrassing defeat for the government (Rogers 1997; p77-78), the fact that both Thomas and Kingham appear happy to admit to being party to this indicates that breaches of confidentiality, even of what could be considered sensitive material, is not the one-way ticket to prison it is often reputed to be.

However, when the government does feel that their position has been seriously compromised by a breach, those responsible are seldom left feeling it is something to be flippant about.

“In the US, whistleblowers are treated as heroes who save the taxpayer money. In the UK, they are scorned and silenced.” (Brooke 2007 p61)

Brian Martin, also author of Information Liberation, explains in his book The Whistleblower’s Handbook, seven common mistakes made by those who seek to expose wrongdoing within an organisation. These mistakes are – trusting too much, not having enough evidence, using the wrong style, not waiting for the right opportunity, not building support, playing the opponents game and not knowing when to stop. (Martin 1999 p1)

By ‘playing the opponents game’ Martin refers to using whistleblowers using official channels to attempt to justify their need to take action.

“The formal channels present themselves as a means to justice, and many people believe in them. They trust the system to provide a means of policing itself – an extension of mistake 1 – trusting too much.” (Martin 1999 p6)

Sarah Tisdall, the government worker who in 1984 provided the Guardian newspaper with details of cruise missiles on British soil, could certainly be charged with making the first mistake. Tisdall trusted that the Guardian, who used the information provided by her for a front page exclusive, would protect her. Instead she was all but handed over as the source of the leak, and later imprisoned. (Rogers 1997, p83-84)

The more recent case of Dr. David Kelly and the “dodgy dossier” bears resemblance to the Tisdall case, although this time ending even more tragically for the whistleblower. Although the journalist involved, Andrew Gilligan, did not himself name Kelly, the Hutton Report concluded it was likely that he had exaggerated what Kelly told him, as Kelly would not have been privy to the kind of information Gilligan referenced (Rayner & Stapley 2006, p432).

While is has been suggested that as a minor Ministry of Defence employee, he was not the only source of Andrew Gilligans claims – Gilligan claimed his source was a high level intelligence employee (Rayner & Stapley 2006 p431) Gilligan did not take any steps to exonerate Kelly. Dr. David Kelly committed suicide on the day of his last appointment with the Foreign Affairs Select Committee who had been interrogating him.

“In twenty years of studying cases of suppression of dissent, and hearing hundreds of accounts of struggles through the system, there is not a single example I can remember in which official channels provided a prompt and straightforward solution to a serious problem. The only cases in which there has been some degree of success through formal channels are those where there was also a process of building support, often involving publicity.” (Martin 1999 p48-49)

There are cases that do end better for the whistleblower. One such is that of Clive Ponting, a civil service mandarin who in 1984 leaked secret papers concerning the sinking of the Argentinean battleship Belgrano to an opposition minister. While the government was encouraged to allow Ponting to retire quietly, as they had just jailed Sarah Tisdall they felt they had no choice but to prosecute. This turned out to be a mistake. While Ponting admitted breaking the law by breaching confidentiality (as he had passed the papers to an MP, also signatory to the Official Secrets Act there was disagreement over whether he had actually violated it) he used his trial to gain public support for his actions, relying on the now repealed Section Two of the OSA, which provided a slim public interest defence. (Rogers 1997 p102-108)

Another case where the government failed to prevent the disclosure of official secrets, or punish the whistleblower involved, was the famous Spycatcher case of 1985-88. Although the government used laws other than the OSA (confidentiality and publishing injunctions) to attempt to halt the publication of former MI5 agent Peter Wright’s memoirs, official secrecy was ultimately their concern.

“the government sought nothing less than to prevent the disclosure of ‘any information, ever, obtained from former members of the security and intelligence services’.” (Rogers 1997 p100)

The government were ultimately unsuccessful, but only because as publication of the book had gone ahead in other countries, it could no longer be justifiably seen as a threat to national security.

While the Ponting case and the Spycatcher case are often held up as examples of victories over official secrecy, on closer inspection these victories can appear hollow. Ponting’s victory over the Thatcher government is questionable when we examine who was actually called to account for the unwarranted sinking of the Belgrano.

“While government ministers who had mislead parliament were exposed, this had little noticeable effect on their subsequent careers” (Rogers 1997 p108)

The Ponting case also led to the public interest defence in the Official Secrets Act being quietly removed, leaving civil servants with no recourse whatsoever should they feel the government is acting irresponsibly.

It has been argued that the Spycatcher case dragged on for so long that by the time the book was actually available, it’s most controversial content was practically ignored (Rogers 1997 p101). It also led to the Security Services Act having a clause added to it, putting all those in employment of the security services under a

“…lifelong duty of confidence to the Crown” (Rogers 1997 p100).

“The irony is that, like the press ‘victory’ in the Spycatcher affair, Ponting’s actions led to a tightening rather than a loosening of the state’s control over information.” (Rogers 1997 p108)

In the case of Dr. Kelly the same holds true. Instead of bringing the government to account over missing WMD, the affair only served to give the government cause to attack the BBC. The public service broadcaster is still attempting to recover from the blows dealt by the scandal, and the ensuing report by Lord Hutton.

Returning briefly to the laws of public access to information, Heather Brooke, author of Your Right to Know (a very similar title to the book written by government whistleblower Clive Ponting) has also questioned why UK citizens do not have the rights to view records that in other countries are easily accessible to citizens.

“Postcode databases, land registers, property tax databases, court records, arrest logs, crime incident details, public officials’ salaries and expenses, publicly-funded contracts, and facts behind major policy decisions, are all difficult to obtain in the UK, while relatively easy for reporters in, say, the U.S. or Denmark.” (Brooke 2005 p40)

In Flat Earth News (2008) journalist Nick Davies devotes an entire chapter – named ‘The Dark Arts’ – to how many Fleet Street journalists use private detectives and even actors to gain illegal access to such records and others that would be unlikely to be covered by any FOI law.

“There they all were, Fleet Street’s finest, calling up their dealer to order their illegal supplies – criminal records, ex-directory telephone numbers, itemised telephone billing, mobile-phone records, lists of ‘friends and family’ telephone numbers, credit-card statements, bank statements, driving license details.” (Davies 2008 p259)

Davies also notes that not only did the total estimated cost of these transgressions to the newspapers involved run to over half a million pounds (Davies 2008, p260) but also that the nature of the requests was generally completely unrelated to the public interest (Davies 2008, p283). The journalists and contractors involved completely escaped punishment and the court case brought against the perpetrators was subject to an almost complete media blackout (Davies 2008, p264). Davies also reports on the increasing use of spying programs, such as Trojan Horses and Mirror Walls, being used by journalists, and criminals paid by journalists to gather personal and private information on their quarry (Davies 2008, p278). While this is clearly not good journalistic practice, were our laws on access to official databases more in line with countries such as Heather Brooke’s homeland, the USA, it would not be as necessary for journalists to become involved with criminals to retrieve information, and perhaps those who did still resort to such means would be easier to recognise and call to account.

However, in the case of access to information, we cannot allow journalists to be let off so easily.

“The leak has its place, and is always gratefully received. But there has to be more to journalism than that. Like hard work, perhaps?” (Bevins 1995 p11)

Since the FOI Act was passed, a large number of news stories have been sourced using it, but by the government’s own admission, there has not been the deluge expected (Brooke 2005 p42). Even in Scotland, where the law is judged to be stronger, in the course of a four month period in 2005, over one third of all FOI requests were made by one journalist, Paul Hutcheon (Brooke 2005 p42). Brooke also points out that when the NHS complained FOI requests were a waste of their resources, journalists meekly reported this as fact without actually examining the claim, and questioning the continuing secrecy of official bodies (Brooke 2005 p42-43).

While many journalists now complain that they no longer have the resources to properly investigate stories, it could be said that some journalists have in fact become lazy, content to wait for a concerned citizen to lay their head on the chopping block or for a story to come to them by more nefarious means. While the FOI Act in itself is not a bad thing, journalists must take it upon themselves to challenge the numerous inconsistencies in what the government claims to be attempting to achieve and what the legislation they pass actually warranted. More effort must also be made on the part of the media to sanction the protection of whistleblowers and to shield those who turn to them for help. It is only once both these aims have been achieved that we can truly refer to freedom of information and freedom of speech within our borders.