Response to UK Home Office’s Consultation “Legislation to Counter State Threats (Hostile State Activity)”
Comments/opinion submitted to the Home Office in response to the Consultation July 2021, slightly edited for publication
To respond to what it terms ‘hostile state threats’ the Home Office Consultation has proposed legislation that will reform the Official Secrets Acts which include core espionage offences, unauthorised disclosure of official material and its onward disclosure. The Government argues these “have failed to keep pace with the threat and modern legal standards.”
It also seeks the creation of a Foreign Influence Registration Scheme — a tool similar to the US Foreign Agents Registration Act (FARA), to help address opaque foreign influence and lobbying in the UK. The UK needs more transparency around lobbying both foreign and domestic. A UK register similar to FARA is important to anti-corruption efforts and the security of UK elections and transparent policymaking.
The measures to expand the Official Secrets Act are far more troubling and as others have suggested would end both whistleblowing and journalism as we know it, along with any ability for the public to make informed judgements about the conduct of this or any future government in wartime.
It is not an overstatement to say the removal of the ‘public interest’ defence for national security disclosures and onward disclosures would render impossible the vital scrutiny of activities needed to expose human rights abuses of the kind which have repeatedly occurred in our history.
Addressing ‘Hack and Leak’ Threats:
First of all, it is important to acknowledge there are a number of emergent threats that government will have in mind with respect to this law but this is not the best way to tackle them. In particular, there have been a number of ‘hack and leak’ attacks in recent years, where documents have been obtained and then released in Russian propaganda and ideological blogs accompanied by analysis that is both ill-informed and often ill-motivated. There are alternative ways to handle this that do not close down whistleblowing. I list a few below:
1) Most importantly, it might seem counter-intuitive but the best response is to support more, well-informed journalism when national security documents are obtained either by UK journalists or when released online. Complete control over information, even classified information, is only possible in an authoritarian state. Government efforts to stop all leaking and whistleblowing are likely to fail and measures to outlaw ‘onward disclosure’ risk fuelling an increasingly mobilized audience for foreign originated content and ideological outlets. After Edward Snowden released documents on mass-surveillance in 2014, mainstream journalism outlets have been placed under greater pressure by governments seeking to prevent further damaging leaks. This has created a vacuum, which has allowed RT to capitalize on a hesitance by other media to report on leaked documents and set the tone for critical reporting. In many cases, this then becomes the only lens through which some activities can be viewed. With every roll-back of UK Government transparency and increasing refusal to engage with and tolerate journalists reporting on damaging releases the UK Government is allowing Russian-linked or just ideological outlets to lead with ill-informed and inaccurate framing on British activities and restricting the ability for outlets that do care about the public interest to provide accurate analysis. British citizens want to understand what their government is doing and will go to whatever outlet is discussing document releases. Accepting this might be critical and building a reputation among journalists for trust-worthy and transparent public affairs will lead to better journalism and improve public understanding of what will inevitably come out. Efforts to suppress information and close down transparent government drive paranoia and conspiracy theories among the very groups most vulnerable to foreign propaganda efforts.
2) There are measures the government itself should take which could be helpful — particular vulnerabilities lie in better training for government personnel. Personnel are indeed at risk of targeting, but the right response to this is the military and contractors to be better prepared for:
a. Phishing and social engineering efforts, particularly for (often over-confident) military personnel;
b. Disinformation within their own trusted networks;
c. Understanding the national security implications that commercial conflicts of interest can pose within contracting and improving disclosures by such companies.
3) In addition, what’s not mentioned in the consultation are the many technical methods which are increasingly built into the design of computer systems for stopping hackers with hostile intent from penetrating systems, including for example honey pots that would only be discovered by someone seeking to illegally gain access to government systems. The focus should be on stopping hackers not stopping journalism.
Following the scandal around the government contractor SCL, parent company of Cambridge Analytica, working in unethical elections, which I helped expose in 2018, there is a need for national security contractors’ greater disclosure of conflicts of interest to the government. In my recommendations for policy, which responded to the Interim Reports and Proposals by U.S. Senate Select Committee on Intelligence and UK Parliament Digital, Media, Culture and Sport Committee’s inquiry into ‘Fake News’ and Disinformation in 2018, I highlighted the networks of that company as a key problem being unaddressed by policymakers, allowing conflicts of interest and other ethical problems to remain obscured.[1] The UK Inquiry stated “The problem with many strategic communication companies is the fact that they work on campaigns that are not only unethical and possibly illegal, but also that they work against the national and security interests of the UK with campaigns for private or hostile state actors, which are at odds with UK foreign policy” and supported my recommendations that we need, “stricter regulation of strategic communications companies, with the establishment of professional licensing that can be revoked if necessary.” Transparent systems over oversight are essential.
Journalist’s Rights
The proposed expansion of the Official Secrets Act is also not in line with FOIA standards in other democracies around the world such as the United States or allies in Europe. It needs to be seen in the context of government measures to close down other information sources for journalists. The proposed criminalization of reporting through this extension of an Official Secrets Act, that was always out of step with allies, is happening at a time when journalists have been unfairly blacklisted and singled out for inconsistent refusals of FOIA and press inquiries resulting in their profiling.
The case of Matt Kennard and DeclassifiedUK not only raises concern over freedom of expression, it shows ‘media monitoring’ & discussions of journalists or their articles in the Cabinet Office or other departments can generate sufficient quantities of mentions to prevent personal data requests by journalists on grounds of quantity. There should be an exemption from such a cap on data requests for any journalists whose high profile or critical work will inevitably have been extensively shared and discussed within government departments to ensure their rights to their own data are protected.
Presently, Freedom of Information Requests made to the Ministry of Defence are being refused that would reveal little to any adversary and which would have been allowed just a few years ago. In April 2018, a written answer in the House of Lords was given by Baroness Stedman-Scott, which stated that 77th Brigade was comprised of approximately 200 Regular and 270 Reserve Service Personnel. Similar information is refused today. The MOD admits “It is true that the UK Government has been more open about the size and composition of 77th Brigade in the past.” The inconsistent deployment of FOIA is stated to be because such requests are “processed on their individual merits,” merits which are argued to have changed. Changes rapidly restricting information that was once released are extremely troubling. Even requests for the most basic information about 77th Brigade, the group responsible for information operations in the UK, are refused on the grounds the MOD does not see the value in ‘promoting’ their activities anymore: “there has been a necessary shift from generating public interest in 77th Brigade and promoting this new UK capability, to protecting the brigade and its personnel in order to protect and preserve its operational effectiveness.” FOIA — and indeed journalism — are not there to ‘generate public interest’ or ‘promote’ UK military activities — they are there for the public’s right to know.
This is a time of rapid change and innovation to respond to emergent military threats, and as such this is when strong journalistic scrutiny is most vital. FOIA needs to be extended to include government contractors, as so many of the activities of government are now privatised this effectively hides most government activity from public scrutiny.
The Consultation states “measures adopted must respect the human rights framework; recognising, in particular, the need to protect privacy, press freedoms and freedom of expression, which are the core foundations on which our democracy and society are built.” Yet the UK has already become an increasingly hostile environment for journalism and whistleblowing disclosures in recent years, the present measures risk democracy itself.
“File:Edward Snowden-2.jpg” by Laura Poitras / Praxis Films is licensed under CC BY 3.0
[1] Emma L Briant (September 2018) ‘Building a stronger and more secure democracy in a digital age’ A Response to Recent Interim Reports and Proposals, published by Digital, Culture, Media and Sport Select Committee Inquiry into Fake News: UK Parliament.
