Britain Follows EU – New Espionage Act Treats Whistleblowers and Journalists as Spies

By Graham Vanbergen – Britain is slowly legislating its way to authoritarianism. If ever proof of this was needed, one only has to look as the mass surveillance spying apparatus installed over all citizens facilitated by the recent Investigatory Powers Act that is unrivalled in the Western world and secret courts of the 2013 Security & Justice Act. But the latest proposals in the form of a new Espionage Act are even more alarming.

The Official Secrets Act 1989 is an Act of the Parliament  that repeals and replaces section 2 of the Official Secrets Act 1911. Broadly speaking a breach of the Act “can be committed only by persons who are or have been, and the offence under section 8 can be committed only by persons who are, crown servants or government contractors.”

What the new Espionage Act does is to bring the entire population in to that same legal realm aside from government employees or contractors working for government.

Initially, it looks reasonable to put in place safeguards to protect big data leaks in the modern world. But what this proposal does is ban the reporting of such leaks as well. In addition, the act of leaking and whistleblowing in the public interest would put those actions by individuals in the same category, as far as government is concerned, as spying for foreign states and giving them the same extended jail sentences, from two to fourteen years behind bars.

Sentences would apply even if the whistleblower or journalist was not British, or even located in Britain.

The UK Law Commission‘s recommendations are all written into a 326-page consultation paper entitled Protection of Official Data. At best, the title of this paper is misleading.

From The Register: “According to the commission, the proposed “redrafted offence” of espionage would be capable of being committed by someone who not only communicates information, but also by someone who obtains or gathers it. There should, it says, be “no restriction on who can commit the offence,” including hackers, leakers, elected politicians, journalists, and NGOs.”

The Register goes on to say that “If the proposed law had been in force in 2013, the Cabinet Office could have thrown Rusbridger (Editor of The Guardian) in prison simply for handling copies of documents Edward Snowden passed to his reporters. As it was, Rusbridger was threatened with a gagging order and jail, and forced secretly to destroy newspaper computers when the government tried to block the Snowden revelations from being published.”

Alan Rusbridger, the former Guardian editor who published the Snowden revelations, told The Register – “It is alarming that such a far-reaching proposed reform of laws which could be used to jail whistleblowers and journalists should have been drafted without any adequate consultation with free speech organisations.”

The political elite within the European Union drafted and implemented very similar legislation. Whilst using ‘trade secrets’ as cover, the document reveals the same oppressive laws designed to stop leakers and whistleblowers and treating them, along with journalists as spies by giving member states freedom to decide what sentences can be metered out.

These are extracts from a Corporate Europe Observatory article entitled ‘Adapting the EU Directive on Trade Secrets “protection’ into National Law.

In June 2016, the EU’s Trade Secrets Protection Directive was enacted to repress espionage, theft and unauthorised publication of companies’ confidential business information, their “trade secrets”. But the way it defines these is so broad that it will also, in all likelihood, make public scrutiny of corporate activities more difficult in Europe.

Trade secrets can be a recipe, a secret manufacturing method, a client database: information that has a lot of value for companies and whose confidentiality can be legitimate. But some of companies’ confidential information is also relevant for the public interest: internal reports of severe malfunction or pollution, plans to relocate a large plant and dismiss the employees, tax optimisation contracts, scientific studies showing harm caused by the companies’ products but kept confidential… What if the rules created to protect the confidentiality of the first kind of information are used to protect the confidentiality of the second kind?

This is a major concern for the media and their sources, for unions, for researchers. Employees’ rights are also at stake, as this text has led to concerns regarding their freedom to go work for a competitor of their current employer.

Despite the strong resistance put up by civil society during the EU negotiations, this text was adopted with insufficient safeguards for political rights. It creates excessive secrecy and information control rights for businesses, getting dangerously close to creating a property right for confidential information where secrecy would become the legal norm and freedom of access, use and publication the exception.

The ‘protections’ on the confidentiality of trade secrets during legal proceedings (Article 9) also risk damaging the rights of defense during a court case if interpreted too narrowly by judges.

This makes defending the safeguards obtained in the text, for journalists, employees, unionists and whistleblowers in particular, and using existing possibilities of damage control, all the more important.

It is probable, unfortunately, that the main political battle at the national level will be to prevent a further worsening of the text. Member states are explicitly offered to do just this in the very first Article of the Directive. In particular, they can (but are not required to) add criminal law elements (fines and prison sentences),  and they can be even more repressive as long as they respect the basic safeguards of the Directive.

Leakers and whistleblowers across the Western world have done much to inform the general public that far from the rules based system of order and rule of law, what we really have is anarchy by the rich and powerful.

When Daniel Ellsberg photocopied and leaked the Pentagon Papers to the New York Times in 1971, those 7,000 pages of top secret Vietnam War documents represented what was then the biggest whistleblower leak in history.  The leaking of 2.6 terabytes, well over a thousand-fold larger — pretty much every document from the law firm from over 40 years ended up being what we now know as the Panama Papers. A number of state implemented investigations have sprung up across the West as a result of people’s revulsion of the global crime wave that has led them into an austerity led dive of living standards.

Snowden and Assange have been the leading lights in the modern age, since then we have seen leaks and whistleblowers abound from pharmaceutical to banking, from government to healthcare. With corporations and politicians now singing from the same hymn sheet, it should be of no surprise that legislating against the public interest is far more profitable and less embarrassing for both.

As we can see from the British and EU proposals, democracy is slowly disintegrating.

 

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