Miranda ruling conflates journalism with terrorism

In August last year, David Miranda, the Brazilian husband of award-winning journalist Glenn Greenwald, was returning home to Rio de Janeiro via London having attended journalist planning meetings in Berlin. He was carrying journalistic material relating to the NSA whistleblower Edward Snowden's disclosures when he was stopped in transit at Heathrow airport.

In a move Greenwald described as “clearly intended to send a message of intimidation to those of us who have been reporting on the NSA and GCHQ”, Miranda was questioned for nine hours by metropolitan police officers acting under the direction of the security service using controversial powers under schedule seven of the Terrorism Act 2000, under which it is a criminal offence not to answer questions at UK ports and airports.

When I met Miranda in Rio two months later, he described vividly how frightened he felt being trapped behind locked steel doors in this no-man’s land transit zone without an interpreter or legal advice for hours, despite being warned that it was a criminal offence to exercise the right to silence, and having to surrender passwor- ds to personal electronic devices or face arrest. The sensitive journalistic material he was carrying was seized and retained.

Schedule seven allows a person to be detained for up to nine hours in order to establish whether they “appear to be” a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism”.

There is no minimum requirement that the authorities must suspect that the individual is in fact such a person; hunch or whim will suffice. Indeed, questions Miranda was asked ranged from his views on the World Cup to the couple’s work with abandoned dogs; “terrorism” barely surfaced in the lengthy interrogation.

This was hardly surprising, given that, in the days before Miranda’s flight when MI5 and the police were frantically passing forms back and forth in preparation for his detention, the schedule seven box was marked “not applicable” – until the police ceded to requests from MI5 and ticked the relevant box in the final version.

Evidence
Six months on, despite frequent references to risks to national security, the UK government has yet to produce evidence that stories published as a result of the Snowden material in the Guardian, New York Times, Le Monde and other responsible media outlets have actually threatened or endangered life, or any specific operati- on. Great editorial care was taken with the material to ensure no harm was caused.

This unprecedented use of schedule seven to detain Miranda must be seen against the important investigative journalism with which he was assisting. These publications have revealed to the world the covert, under-regulated surveillance of millions of ordinary citizens, businesses and world leaders alike.

The revelations of mass surveillance are certainly embarrassing for the UK and other governments, and the information is sensitive, but to ride roughshod over fundamental constitutional freedoms and “shoot the messenger” is to perpetrate a further injustice on a public who have the right not to be kept in the dark.

Three days after the controversial stop, Miranda launched judicial review proceedings against the police and Home Office, challenging the use of schedule seven powers. He argued the government had misused the power in order to obtain materials that might have been denied to them by a court; that the stop constituted a disproportionate interference with freedom of expression rights; and that the legislation itself must be reviewed. The case was heard in November 2013.

Last week, the high court in London acknowledged Miranda’s treatment “constituted an indirect interference with press freedom”, but ruled it was warranted by “very pressing” interests of national security. The judgment as it stands has serious implications for journalism and the public’s right to receive information.

The lead judge, Lord Justice Laws, effectively rejected the following core principles of a free press:

1. That journalists, like judges, have a role in a democratic state to scrutinise action by government.

2. That the function of the free press is inhibited by an insistence that anything (in the national security field) that the journalist seeks to publish must be stifled because it may be part of the information jigsaw from which a knowing terrorist may draw harmful inferences.

3. There is a balance to be struck, again in the security field, between the responsibility of government and the responsibility of journalists.

He reasoned that these propositions would confer on journalists a constitutional status that they did not deserve. So, as things stand, journalism is at risk being conflated with terrorism.

While we wait to see what the court of appeal makes of the case, the fact that schedule seven powers may be exercised without reasonable suspicion against an individual carrying journalistic material will have a chilling effect on journalistic expression. Anecdotal evidence suggests journalists are already changing travel arrangements to avoid UK ports and airports to safeguard material, sources and confidential working systems. Unsur- prisingly, the UK has this month slipped down the 2014 global index on freedom of expression produced by the international watchdog, Reporters Without Borders.

The only small comfort to take from the judgment was the court’s recognition that the protection of journalistic sources is one of the basic conditions for press freedom, that leaked or stolen material may benefit from protection as journalistic material, and that non-journalists incl- uding cameramen, interpreters and assis- tants, may also need the law’s protection.

Intrusive powers
In the court of appeal, we will argue the high court judgment fails to give appropriate weight to the rights of investigative journalists and to the need for independent judicial authorisation before the state may seize journalistic material. We will also challenge the lawfulness of schedule seven generally, on the basis these highly intrusive powers are arbitrary, legally uncertain and incapable of being used compatibly with basic human rights.

These counter-terrorism powers have never before been used to seize a journalist’s material. Let’s hope the court of appeal agrees that a greater margin of deference needs to be afforded to the fourth estate, if only to preserve the safety valve of effective investigative journalism in these changing times.

Gwendolen Morgan, solicitor at Bindmans LLP, represents David Miranda