Archive for the ‘Articles’ Category

Article: Government changes would kill FOI in Britain

Wednesday, January 2nd, 2013

Recently the Government published its response to Parliament’s post-legislative scrutiny of the Freedom of Information Act. I wrote a response to this in the Sunday Times.

The Sunday Times, 24 December 2012

The Freedom of Information Act (FOIA) has always sat uncomfortably with the British government. Britain was one of the last western democracies to adopt the act and officials were so worried about people’s “right to know” that implementation of the law was put off for five years — the longest preparation time in the world. Indeed, Tony Blair described its passage as “one of the biggest mistakes I made in office”.

That should tell you all you need to know about officials’ fear of real public engagement. Responding to what people actually want to know is a different form of democracy from telling people what you want them to know through bloated governmental press offices.

After the expenses scandal, this government came to power on a transparency mandate and has substantially improved matters, opening up large tracts of official data, publishing more public spending information than ever before and even providing pay grades for public officials. We are still a long way from what a company chief executive would expect to see from his employees — exact pay and perks for all staff employees with their name attached — but things have improved dramatically.

However, all that good work is about to be undone by one worrying change announced last week in the government’s response to post-legislative scrutiny of the FOIA. This would allow officials to “take into account some or all of the time spent on considering and redacting when calculating whether the costs limit has been (more…)

Article: Leveson fallout

Monday, December 17th, 2012

Pressing Matters
House Magazine, 6 December 2012

(Download the PDF)

It is deeply disturbing to read Brian Leveson’s recommendations on regulating the press at a time when police and security services are trying to legalise the broadest surveillance powers yet on ordinary citizens.

The Leveson Inquiry was “sparked by public revulsion about a single action – the hacking of the mobile phone of a murdered teenager”.  Yet the Communications Data Bill will give the state a legal right not simply to ‘hack’ voicemails, but rather to spy on all our communication – both telephone and internet – without judicial oversight. 

Regulating the press? The state spying on its citizens? These are not the hallmarks of a democracy. When the supposed torch-bearers of Enlightenment values fall under the spell of authoritarianism, we must worry not only for ourselves, but for the citizens of truly authoritarian countries. The West is in danger of abdicating its values and becoming a place where the stifling of a free press and universal surveillance of citizens is legitimised.

The Leveson report is a screaming in the wind by an Establishment who cannot believe how fast power is slipping from its grasp in the digital age. Watching the hearings I was reminded of ‘Sunset Boulevard’ with Leveson as Norma Desmond, waiting for his close up. 

Leveson is an exercise in delusion and denial. For the sad fact is that newspapers are dying. News is now online. Digital information does not respect national borders. If there is any jurisdiction it does respect it is that of the United States where most of the major technology companies operate and where there is a First Amendment protecting free speech and a free press. The judges, lawyers, the great and the good of Britain who once controlled what could be said, now cannot. In their pique, they are in danger of throwing away what still matters: our democratic values.

Leveson deals with inconvenient truths – such as the largely self-regulating internet – by ignoring it. The sheer bulk of the report symbolises bias towards a statist ideology where bigger is better and centralised state control best of all. That the Internet has become so fabulously successful precisely because it is not centrally regulated is again ignored. 

A few proposals are worth singling out. Leveson acknowledges the importance of whistleblowers in identifying and alerting us of corruption and injustice. But the ‘us’ he refers to are not the public. Even when he admits there is no authority within the police service that commands the trust of officers, he wants only a confidential channel. He proposes that employment or service contracts include a clause ‘to the effect that no disciplinary action would be taken against them as a result of a refusal to act in a manner which is contrary to the code of practice’. But this is limited only to journalists’ contracts. Why not public servants such as NHS staff where gagging clauses can be found that deter, undermine and penalise whistleblowers? They are dealing dealing with matters of life and death.

He claims the “Police Service as a whole has responded positively and proactively”, which is not what the journalists who investigated phone-hacking say. And if the police did fail to do their job, Leveson forgives that, too, because they had ‘perfectly reasonably decided to limit the prosecutions in 2006 not least because of their incredible workload that was a consequence of terrorism.’ No such real-world pressures – such as lack of public records, severe financial constraints even the collapse of the industry – are accepted for newspapers. 

He concludes that the press is too close to politicians and the police but entirely ignores why this is so. In Britain, there is simply no other way to get information without getting close to either. It is the secrecy of the system that has created the collusion and the information cartels. 

Despite all my efforts to investigate MPs’ expenses using the law, in the end it came down to an inside leak paid for with cash. Newspapers are pragmatic. They operate in the system as they find it. The only reason I was different is that I came from America where the records are public and there is less need for reporters to collude with the powerful to get information.

Article: State Spying needs to be shown the back door

Monday, April 9th, 2012

This is a slightly longer version of an article I wrote for The Times last week about the UK Government’s proposal for industrial internet surveillance: the ‘snooper’s charter’. The following day, the Government announced it would NOT be putting the bill forward in the Queen’s speech but it still remains very much a live issue.

Don’t let the State spy on us by the back door
The Times, April 3, 2012

Proposed new laws would give powerful officials instant access to people’s internet data

It used to be that running a police state required a tremendous outlay of resources, from hiring watchers and informants to the central collection and storage of paper files. As we move our lives on to digital networks, we create a handy one-stop shop for the nosy official.

It is simple for governments to eavesdrop on our digital communications. They don’t have to store the data; they just go to where it’s collected – internet service providers (ISPs), social networks and telecoms companies. One simple step takes the State’s ability to spy on its citizens to a whole new level.

[We may hope our democratic principles would protect us from the sort of industrial internet surveillance practiced in China, Iran and other autocratic states. However, this government’s proposal revealed yesterday reveals a plan to rival China.]

Intelligence agents can already tap into our online communication and data where there are reasonable grounds for doing so. The Regulation of Investigatory Powers Act 2000 (RIPA), extended in 2003, allows not only the police, intelligence services and Revenue & Customs officials, but many other organisations, including local councils, to access telephone records, e-mail and internet activity.
That we have no idea how often they do it or for what purpose is an indication of the lack of supervision in this area.

There are three officials in charge: (more…)

Article: The Future of Investigative Journalism

Saturday, March 3rd, 2012

The Lords Communications Committee report, “The Future of Investigative Journalism”, (HL: 263 – pdf) was published 16 February and I’ve written an article in response for House magazine.

Report Review
March 1, 2012, The House

‘The starting point for this inquiry, as already mentioned, has been that responsible investigative journalism should be protected and encouraged, given its important role in our democracy.’

I am glad to see these words in the Lords communications committee report, The Future of Investigative Journalism, published 16th February, but the reality is that the law, the costs, the lack of public records, and an elitist political structure, obstruct public interest investigative journalism.

When journalism was profitable, these costs could be borne. Now they cannot. By all means prosecute those who break the law, but the press needs support, not obstruction. The journalism of verification and truth is resource-intensive. The best way to encourage it is to lower the resources needed to do it.

Firstly, it must be made easier to conduct public interest investigations. It should not take five years of a person’s life to find out the most basic facts of how public officials spend the public’s money (MPs’ expenses). And here we find in the UK, the crucial ingredient necessary for responsible journalism missing: easily accessible public records. The most important of these are:

  • Court records – including full court lists with full, real names (no abbreviations); all documents referenced in bundles, full judgement and sentencing (current and historical).
  • Police records – incident reports and arrest bookings.
  • Identification records (vehicle ownership records, reverse telephone directories, electoral registers).
  • Regulatory inspections, complaints, violations, prosecutions
  • Detailed ‘line-item’ budgets
  • Land ownership
  • Company registrations and accounts.

In the USA where I trained as a reporter, these records were the basic building blocks for all journalism: used for accurate identification, verification and investigation. Privilege attached to their content so that if I reported that X had been charged with fraud, I was protected from libel if I had quoted accurately from the police charge sheet or the court record.

In the UK, only the last two items are easily accessible. Reporters still have the same requirements, however, so they must get information elsewhere: hearsay, anonymous sources or illicitly obtained either for money or favour. This is not good for democracy. It would be better for these civically important records be available to all, regardless of favour or resources.

The second way to encourage public interest investigation is to reform the libel law. The committee rightly points out that ‘investigative journalism is especially resource-intensive, requires long-term investment with no guaranteed return, involves some risk of litigation’, but it understates the problem: ‘the working of the libel laws in the UK can, on occasion, have a discouraging effect on responsible investigative journalism…’ No, not on occasion – always.

Any journalist thinking about investigating the powerful (corporate or government) must be prepared for bankruptcy. Everyone I know who has written a non-fiction, current affairs book published in the UK (myself included) had to go through an expensive libel reading. The exact same books published in the USA do not have these costs. The committee praises the creation of the the Bureau for Investigative Journalism, yet one of the biggest obstacles it faced was finding reasonable libel insurance. This legal nightmare halts small or online cooperative journalism sites in their tracks., for example, was hobbled because of the UK’s libel law.

We do not need more obstacles put in the way of investigative journalism. The net result will be to make it harder for journalists acting in the public interest. People like me will be priced out of the market. Instead, we will have ill-informed online propaganda and public relations circulated instantly across the globe.

Article: Accused leaker Bradley Manning in court

Tuesday, December 20th, 2011

In its punitive treatment of accused leaker Bradley Manning, the US government has missed an opportunity to live up to its values of freedom, says Heather Brooke

After 18 months, accused leaker gets a day in court
Index on Censorship, 16 Dec 2011

After nearly 18 months’ incarceration and punitive treatment described as “torture” by human rights activists, accused leaker and former US Army intelligence analyst Bradley Manning will finally get a day in court.

This is not a trial, but an “Article 32″ hearing, the US military equivalent to a civilian pre-trial hearing, where the defence can evaluate the government’s case and obtain facts through pre-trial discovery. It begins on 16 December at Fort Meade, Maryland and is expected to run right through the weekend for approximately five days. Despite press interest, only a small number of seats are available for the public and reporting restrictions are in place to prevent live coverage.

Saturday will mark Manning’s 24th birthday, the second birthday he has spent in custody since his arrest in May 2010 for allegedly leaking a US Army video that showed soldiers gunning down Iraqis, including two Reuters journalists. He was later charged with 22 violations of military law for allegedly leaking records and transmitting defence information. He faces life in prison if convicted. The hearing will determine whether or not he goes ahead for a full court-martial.

The length of time Manning has been in pre-trial confinement is controversial, but more so has been his treatment while confined — seeming more like punishment than justice. While in the military brig in Quantico, Virginia he was in maximum custody and controversially placed on prevention of injury (POI) watch, which meant he was in solitary confinement, forced to spend 23 hours in a cell six feet wide and twelve feet in length.

His lawyer David Coombs reported Manning was woken at 5am weekdays and 7am on weekends and was not allowed to sleep any time between then and 8pm. If he attempted to sleep during those hours, he was made to sit up or stand by the guards. Guards checked on him every five minutes by asking him if he was okay. He had to surrender his clothes at night apart from boxer shorts. He was not allowed a pillow or sheets, nor any personal items in his cell, and was prevented from exercising apart from one hour when he would walk in a figure of eight motion.

The harsh conditions were denounced by human rights groups, including (more…)

Article: US Govt secretly snoops on your email

Tuesday, December 20th, 2011

How the US government secretly reads your email
The Guardian, 11/12 October 2011

Secret orders forcing Google and Sonic to release a WikiLeaks volunteer’s email reveal the scale of US government snooping

Somewhere, a US government official is reading through a list of those who sent or received an email from Jacob Appelbaum, a 28-year-old computer science researcher at the University of Washington who volunteered for WikiLeaks. Among those listed will be my name, a journalist who interviewed Appelbaum for a book about the digital revolution.

Appelbaum is a spokesman for Tor, a free internet anonymising software that helps people defend themselves against internet surveillance. He’s spent five years teaching activists around the world how to install and use the service to avoid being monitored by repressive governments. It’s exactly the sort of technology Secretary of State Hilary Clinton praised in her famous “Internet Freedom” speech in January 2010, when she promised US government support for the designers of technology that circumvented blocks or firewalls. Now, Appelbaum finds himself a target of his own government as a result of his friendship with Julian Assange and the fact WikiLeaks used the Tor software.

Appelbaum has not been charged with any wrongdoing; nor has the government shown probable cause that he is guilty of any criminal offence.

That matters not a jot, because, as the law stands, government officials don’t need a search warrant to access our digital data. Searching someone’s home requires a (more…)

Article: Journalism’s unique selling point is the public interest

Wednesday, September 28th, 2011

As Lord Justice Leveson prepares to investigate newspaper conduct, I joined three other writers to discuss ‘How far can the press go in the public interest?’

The press will die if it fails in its duty to serve the public interest
The Times, 27 September 2011

The ethics of what should or shouldn’t be published can be distilled down to a simple rule: is it in the public interest? Put simply, the public interest is not the tittle-tattle that interests the public but anything that informs and enlightens society.

The pursuit of this high-minded ideal is not exclusive to reporters: a lot of academic and scientific research fits that bill. But journalism is different because as a rough trade it deals with the ugly realities of human nature: sex, scandal, crime, corruption – all the emotional vagaries that make up the “crooked timber of humanity”. It’s not about peddling pretty pictures; that’s public relations or propaganda. Because of those ugly realities journalists have to use subterfuge or deception to dig out the truth. Where activity is not in the public interest and criminal then let it be prosecuted, but we should be wary of prosecuting speech or regulating the press.

First, it is impractical to introduce national regulations on the press as information now flows globally. What people can’t read in the newspaper they will get from Twitter, which, as a US company, is governed by the more tolerant First Amendment.

Second, we should note that the greatest abuses in history were never a result of too much speech but rather too little. It is only through free speech that we have any hope of tackling the real enemy of the people: the concentration of power.

Where speech is false, then the best way to tackle it is with more, not less, speech. Jemima Khan showed this when she put paid to rumours that she had sought a superinjunction not by bringing a court case against Twitter, but by tweeting the truth herself. Public figures may be more accountable in the internet age but they equally have more opportunity to get out their side of the story.

Journalists, too, have come under more scrutiny than ever before, thanks to the internet.

Rather than a race to the bottom, this explosion of speech creates a renewed need for public interest journalism. In the age of information overload, when everyone can tweet or blog, how can we know what is important or true? We look to reputation.

Journalists are, or ought to be, the public’s hired guns sent out to collect information, question it, verify it and distilit to what is important and true. This takes time and skill, and is the only thing a journalist does that marks him or her out as a professional. It’s also the reason why anyone would choose a well-known newspaper’s website over an unknown blog.

The survival of journalism in the digital age rests on its one unique selling point: serving this public interest. Fail or forget to do that, and it has no future.

Separating the man from the cause

Friday, September 23rd, 2011

An abbreviated version of this article appeared in today’s (London) Times.

The WikiLeaks ‘hero’ is actually morally bankrupt
The Times, 23 September 2011

One question I’m often asked about my long investigation into MPs’ expenses is whether I was ever threatened with retribution. The answer is no. The closest I came was John Prescott getting snarly on Newsnight and an angry letter from a former MP staffer.

Strangely enough, it was investigating Julian Assange, the WikiLeaks frontman, for a book about the digital revolution that put me in the crosshairs of an angry online mob. At first I was impressed by this seeming warrior for transparency, democracy and accountability. In his “unauthorised autobiography”, published this week, we hear the old war stories of his early hacking days when he used the handle Mendax, from Horace’s Splendide Mendax – nobly untruthful. Yet I came to discover there was little that was noble about Assange’s mendacity.

He may have started WikiLeaks with the best of intentions, but to lead a campaign for openness while acting like an authoritarian patriarch with little respect for the truth does not bode well.

He looked upon WikiLeaks donations in the same way some politicians look upon the taxpayer, as a funding source for personal needs. This first became apparent after he was accused of sexual assault by two women in Sweden and he tried to use donations to fund his personal legal defence. Other WikiLeaks volunteers opposed this, and for this they were deemed traitors. Assange’s method throughout has been to conflate the cause with the man and by so doing try to make himself above question.

In his world, those who challenge him for his dubious behaviour aren’t holding him to account but part of a dark conspiracy. I witnessed many Wikileaks volunteers who dared question Assange, denounced by him as either stooges of intelligence agencies or spurned lovers (men or women, it didn’t matter). Online whispering campaigns would start up seeding these ideas. People who gave Assange their time and money would find themselves suddenly sidelined and briefed against for daring to question an immoral action by the founder. Long before Daniel Domscheit-Berg wrote his book, Assange was telling people that his former partner was a paranoid schizophrenic and an intelligence agent. When Icelandic MP Birgitta Jonsdottir voiced her disapproval of Assange’s decision to publish informers’ names in the Afghan war logs, he told reporters it was because ‘she’s in love with me’. It was the same with all those who worked with Assange whether at the Guardian, New York Times, Norway’s Aftenposten or most recently Canongate. What could never be countenanced was that Assange was responsible by his own actions.

When I got hold of the full set of US diplomatic cables, I discovered first-hand Assange’s capacity for dissembling, spin, threats and blatant untruths*. While Assange showed bravery, the way the Afghan logs were published with informers’ names left in was ethically irresponsible. He claimed I’d obtained the leak of his leaks through “criminal deception”, which was an utter untruth*. He told another reporter that he “knew where I lived” and the insinuation was that I’d better watch out. He threatened to sue me for depriving him of his “financial assets” (no writ yet). I heard from hacker friends that he’d been smearing my reputation, and his tiny army of cultish Assangistas launched a hate campaign online.

These people wanted their hero and they could not countenance the truth: that the man they’d chosen as their saviour was morally bankrupt. His fight for freedom of information wasn’t based on any moral principle but rather from a barely understood psychological compulsion.

So I, for one, want to separate the man from the cause. If one is going to be a campaigner for truth then telling it occasionally wouldn’t go amiss.


* Due to English libel law, newspapers in the UK are loathe to ever use the word ‘lie’ and so you will see that ‘lies’ and ‘utter lie’ are published as ‘untruths’ and ‘utterly untrue’. These two words may seem indistinguishable to the reader but in English libel law they matter. A lie is: to speak untruthfully with intent to mislead or deceive whereas an untruth is: the state or quality of being untrue; a statement or fact that is untrue. The key difference is that a lie is an untruth told with deliberate intent to mislead. In this article, ‘lie’ is actually more accurate. However, English libel law is one of the most restrictive of free speech in the world. It puts the burden of guilt on the defendant (the writer) who is presumed guilty and must prove innocence. It is for this reason that England is favoured by the rich and powerful as the place to bring libel actions as a means to stifle and suppress criticism. Assange was initially a great campaigner against England’s libel law, at least until he became powerful and then began threatening libel actions of his own against those who criticised him.

Article: Police attempting to criminalise investigative journalism

Friday, September 9th, 2011

Investigative journalism must not be criminalised
Guardian, 9/10 September

Police questioning of journalists such as the Guardian’s Amelia Hill who seek to uncover corruption is a worrying trend

The questioning under caution of the Guardian reporter Amelia Hill by the Metropolitan police is part of a worrying trend: for the police appear to be using their power not to root out corruption or bribery, but to stop a reporter doing her job, namely to winkle out the truth about an issue of public importance.

Hill reported a number of stories about the phone-hacking scandal, including the revelation of Milly Dowler’s phone being hacked by News of the World. It was this story that finally compelled police and politicians to fully investigate a scandal that some had known about for years. Commentators have seen Hill’s questioning as part of a wider attempt to criminalise contact between journalists and off-the-record sources.

But there is nothing unusual about police and reporters hanging out together. In the old days of crime reporting this was commonplace and it was not unduly difficult to strike a balance between keeping the public informed without endangering investigations. But in the age of public relations and spin, such free conversations are looked upon by the authorities as highly dangerous – not to policing so much as to those in power. Such free conversations might lead to challenging questions.

The danger with a centralised police PR operation is that information is used not to benefit the public but to benefit those in power, often to the detriment of the public. It is for this reason that officers “leak”, because they want to solve their cases and they know they can only do so with the help and co-operation of the public.

The situation Hill has apparently been questioned about calls to mind two recent cases. Philip Balmforth was a former police inspector and vulnerable persons officer responsible for Asian women in the Bradford area of West Yorkshire. He was praised in a House of Commons early day motion signed by 56 MPs in March 2008 for being a “knight in shining armour” who “does everything he can to protect people and give them time to assess the situation they are in”. Yet a week after he was praised in parliament he was facing a disciplinary hearing for “damaging the reputation” of West Yorkshire police, all because he spoke directly to a journalist.

“I had a speech ready for every journalist – after being told the publicity had to stop,” Balmforth told me. “The speech was: ‘You must contact the press office.’ But many in the media would ask for ‘off the record’ background to the problem, which I would willingly give, subject to contacting the press office before using it (who would always refuse).

Balmforth spoke out in the Times challenging the official figure given by the government’s forced marriage unit that there were 300 cases of forced marriage annually, saying he dealt with that many in West Yorkshire alone.

We should be grateful to Balmforth for alerting us to the problem of forced marriage. Instead he was stripped of his position by the police force. He has now retired.

Another police officer who dared to question one force’s use of covert surveillance was himself put under surveillance and his friend Sally Murrer, a journalist at the Milton Keynes Citizen, was arrested and threatened with life in prison.


Article: Freedom of Information and big business

Thursday, September 1st, 2011

Freedom of information is for businesses too
Guardian, 1/2 September 2011

Is scientific research endangered by Philip Morris’s freedom of information request? Not when we all benefit

A request by tobacco giant Philip Morris International to the University of Stirling has reignited concern about the use of freedom of information laws. The data it was interested in was collected as part of a survey of teenagers and smoking carried out by the university’s Centre for Tobacco Control Research.

The UK’s FoI law is meant to be applicant blind. This means anyone can ask a public body for official information and there should be no discrimination based on the identity of the person asking. In the case of scientific research conducted and funded in the public’s name, there is a strong argument that the underlying data and methodology should be disclosed. It is precisely this transparency that grants research reports their status as robust investigations.

Some universities, however, are balking. Stirling is one of nine universities that form the UK Centre for Tobacco Control Studies, and is the premier research institute for investigating smoking behaviour. It receives funding from the Department of Health and its findings are used to formulate anti-smoking laws. So it’s probably no surprise that Philip Morris is interested in its data. The tobacco company made its first FoI request anonymously through the London law firm Clifford Chance in September 2009. It put in a further two FoI requests in its own name: all seeking underlying data and methodology for the centre’s report, which was called “Point of Sale Display of Tobacco Products”. In particular, it sought information from a survey entitled “Cancer Research UK CTCR survey of adolescents’ reactions to tobacco marketing” which was referred to in the introduction to the report.

The university provided some data but refused the bulk by claiming the requester was time-wasting. It would have been better off dealing with the request openly and using those exemptions in the FoI law which protect privacy or expending excessive resources. Instead, its appeal to the Scottish information commissioner was rejected. This is not the first time a university has tried to hide from FoI. The University of East Anglia breached the Freedom of Information Act when handling requests by climate change sceptics (the university escaped prosecution because the case came to light outside the six-month time limit for cases to be brought).

Other universities claim researchers will feel inhibited or endangered if forced to reveal their methodology or primary data. This strikes me as unlikely. The arguments reveal a discomfort with the higher level of accountability that exists in the digital age. There are plenty of exemptions in the FoI law for genuine issues of cost, privacy and confidentiality. Stirling’s attempt to refuse the request, calling it “vexatious”, smacks of fear. The research in question is funded with public money and conducted in the public’s name. These reports often go on to become cornerstones in creating new legislation, so we should be allowed to interrogate the underlying facts.

Several FoI officers complain it’s unfair to the taxpayer to provide such data to a rich company like Philip Morris. Indeed there may well be concerns about what Philip Morris will do with the data, but if it’s available to all then we can see for ourselves if any attempt is made to “spin” it.

In the US, businesses are one of the biggest users of FoI and new industries are built on this universal access to official data. The ability to use and re-use official government data is a factor behind the remarkable growth of the US knowledge economy. The satellite navigation industry grew out of free GPS data obtained from the US government.

There’s a unique anti-business attitude in Europe in relation to FoI. Prof James Boyle of Duke University Law School told me: “European attitudes towards private commercialisation actually work against the idea of openness. In the US if the government hands out weather data for free and people make a ton of money off the back of it, everyone says, ‘Great! it’s good for the economy, good for us, good for the company’ … In Britain there’s a sense that the company has got something for free and now they’re making money out of it. ‘How terrible! They’re free-riding.’ They don’t see the overall economic benefit that comes from sharing information.”

I’m in favour of businesses using FoI. Not simply because business people are members of the public but because once businesses – with their bigger budgets and legal departments – start using FoI, we might see the law have some real bite.