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Tytti Oras: Intelligence Act could erode source protection

Parliament now has before it a wide-ranging package of legislation on military and civil intelligence. In its statement to the Parliamentary Committee on Defence, the UJF has pointed out errors and problematic issues in the draft legislation that could in practice erode source protection for journalists.

We should be prepared for the fact that in the future the authorities may access communications between journalists and their sources, writes UJF lawyer Tytti Oras.

Parliament now has before it a wide-ranging package of legislation on military and civil intelligence. In its statement to the Parliamentary Committee on Defence, the UJF has pointed out errors and problematic issues in the draft legislation that could in practice erode source protection for journalists.

It remains uncertain, for instance, whether oversight of intelligence gathering would be effective with the resources mentioned in the proposed bills, and how the legal rights of the individual could be guaranteed when it is not always necessary to notify the subject of communications interception that the operation has ended.

Source protection refers to a journalist’s right not to reveal sources in a pre-trial investigation or during a trial. Source protection safeguards journalistic information acquisition and facilitates public debate. According to the Guidelines for Journalists, the journalist has the right and obligation to keep secret the identity of a person who has provided information confidentially when this has been agreed with the source.

There are some limits on intelligence gathering with respect to source protection safeguards in the draft bills. In them, intelligence gathering may not be expressly targeted at information that comes under source protection. On the other hand, the bar on intelligence gathering does not apply to all journalists’ communications, so in practice it is possible that information covered by source protection ends up with the authorities. In most cases, such information should be immediately disposed of.

But the obligation to do so does not alter the fact that confidential information will have already come into the wrong hands. If during communications intelligence gathering a message is read “accidentally” it can’t then be unread.

In the future, therefore, we will have to bear in mind that the authorities may be aware of communications between journalists and sources. So it’ll be up to journalists to decide for themselves what sort of protection to promise their sources.

Source protection hasn’t been entirely watertight as it is. When investigating criminal suspects, the police have been able to tap phone calls. But in the future journalists’ communications could be picked up by intelligence officials in situations where neither party to the communications is even a suspected of having committed an offense.

People will be able to notify the intelligence agencies if they suspect that they’ve been illegally targeted for surveillance. But journalists will not always be entitled to know whether they are subject to surveillance.