GCHQ headquarters in Cheltenham

Documents from National Security Agency whistleblower Edward Snowden show that the British spy agency, GCHQ, listed “investigative journalists” as a threat alongside hackers and terrorists in an “information security assessment.” Another batch of files indicated the agency had collected emails from journalists working in the United States and United Kingdom.

The Guardian’s James Ball reported that the emails collected by surveillance were from BBC, Reuters, the New York Times, Le Monde, the Sun, NBC and the Washington Post as well as The Guardian.

“The communications, which were sometimes simple mass-PR emails sent to dozens of journalists but also included correspondence between reporters and editors discussing stories, were retained by GCHQ and were available to all cleared staff on the agency intranet,” according to Ball.

Ball’s report maintained that journalists had not been “intentionally targeted” and, from looking over the Snowden documents, it appeared they had simply been “captured and stored as the output” of a tool being designed to “strip irrelevant data out of the agency’s tapping process.”

The revelations implicating journalists come as the UK is considering a proposal that would essentially remove the right of journalists to protect their confidential sources.

Over 100 newspaper editors signed on to a letter warning that the “draft code of practice on use of the Regulation of Investigatory Powers Act puts journalists’ sources at risk.”

The new code permits police to “secretly view journalists’ phone records provided they give ‘special consideration’ to the ‘proportionality’ of doing so.” And, “Communications data is not subject to any form of professional privilege – the fact a communication took place does not disclose what was discussed, considered or advised.”

Editors who signed the letter argue that this is, in fact, highly privileged information. If a journalist identifies an individual as a source, they may expose that person to “recrimination.”

“Public sector whistleblowers will not come forward to journalists in the future if law enforcement agencies have the power to view journalists’ phone records at will.”

During a speech on January 19, Guardian editor Alan Rusbridger declared, “Journalism, which relies on unauthorized sources for much that is good and valuable, would be changed forever in this country. That’s not something to sneak in a few paragraphs of an obscure Home Office consultation document.”

The Official Secrets Act in the UK, as Rusbridger noted, continues to be a mechanism the government can use to criminalize journalism containing critical information which fosters debate about security and civil liberties. He said that has to change.

Previously, Snowden has explained in the UK, where the same constitutional limits which exist in the US are not present, a “system of regulations where basically anything goes” has been created. This means “GCHQ and other British spy agencies can do anything they want. There are really no limits on their capabilities. What they do is they collect everything that might be interesting to them, which includes basically a five-year backlog of all the activities of citizens in the United Kingdom.”

Agents collect everything then claim that it is protected on the “back end” through instituted rules. It won’t be searched through unless a procedure is followed, however, “these policy restrictions and these rules and regulations for accessing this data are not “uniformly applied.” For example, they’ll use “unlawfully collected information” to pursue criminal prosecutions.

The UK is a “testing ground” for the “Five Eyes” partners – UK, Canada, the US, Australia and New Zealand. It is where spy agencies can experiment and develop new surveillance programs, which may be outside the law in the other four countries.

GCHQ also has considered it a “selling point” to have less legal restrictions on surveillance than the NSA has in the US. In 2013, it hoped it had “exploited to the full our unique selling points of geography, partnerships [and] the UK’s legal regime.”

In August 2013, documents from Snowden showed the NSA had paid GCHQ over $150 million in the past three years. What NSA gets out of this relationship is the ability to gain insight through surveillance it may not think it could get away with conducting in the United States.

The close relationship between NSA and GCHQ means any storage of journalists’ communications, whether targeted or not, puts confidential sources in both countries at risk.

Creative Commons Licensed Photo by Nilfanion

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."