The secret’s in: how technology is making public interest disclosures even harder

Sacked: former UK defence secretary Gavin Williamson was dismissed following the alleged leak of sensitive government information. EPA-EFE/Facundo Arrizabalaga

Defence Minister Gavin Williamson’s recent departure from the Cabinet was as spectacular as it was rancorous. Daily Telegraph political reporter, Steve Swinford, had published a piece revealing a split in the National Security Council over allowing the Chinese tech giant Huawei to bid for work on the forthcoming 5G network. That there had been a leak at the hyper-secretive NSC by one of the ten or so ministers that attended resulted in an urgent investigation. Within a day the prime minister and her cabinet secretary, Sir Mark Sedwill, called in Williamson and told him that there was “compelling evidence” of his leaking of material. It was the first time in 70 years that a cabinet minister had been sacked for leaking.

Despite Theresa May’s certainty over the sacking, the case reveals the difficulty of identifying leakers, and some tricky questions remain. That Williamson had talked to Swinford a few minutes after coming out of the NSC meeting is not in question. Williamson admitted early on that he spoke to Swinford after the meeting but vigorously denied that he or his staff were responsible for the leak. Williamson’s admission of a meeting may be strong circumstantial evidence of leaking, but it is not in itself “compelling”. Williamson says there was no discussion of Huawei with Swinford and they talked for 11 minutes about the Tory leadership, Brexit and other matters.

In my view, having studied leaks for many years, there has to be something more for the prime minister and her cabinet secretary to be so sure. What the defence secretary and the journalist said in the telephone call is only known to them – unless somebody in government captured that conversation. Pretty well all meta-data of UK citizens phone calls is available to GCHQ but that would have just revealed actuality of the call – not the contents.

Did some government agency have a recording that led to the “compelling” evidence? Or did Williamson do something suspicious like not use his own phone for the call? And who called who? It could be a simple hatchet job based on circumstantial evidence – we do not know.

On the face of it, the call itself does not meet the standards of proof required in either a civil or a criminal case. The PM’s refusal to involve the police in a leak inquiry would be all the more wise if the damning evidence came from an eavesdropping agency. You would not want that known. The police have said it is not a matter for them as it is not a breach of the Official Secrets Act.

The offical line that a leak from the NSC does not constitute a breach of the Official Secrets Act seems inconsistent when two Belfast journalists are on bail in Northern Ireland – Trevor Birney and Barry McCaffrey as a result of police investigating what they describe as a breach of the Officials Secrets Act. Birney and McCaffrey had published a police ombudsman’s document that identified the alleged culprits in the 1994 Loughinisland massacre.

National security leaks

Leaks have been a feature of journalism from its earliest incarnations but the late Chapman Pincher was reputed to be the first UK journalist to master the art of the “exclusive by leak” from politicians and officials. For much of the latter half of the 20th century, the Daily Express journalist’s leak-based journalism was famous and often controversial. So much so that he was the target of historian E.P. Thompson’s caustic observation that Pincher was “the public urinal where ministers and officials queued up to leak to” – an insult in which Pincher took perverse pride. Pincher was the master of recruiting leakers – usually politicians or mandarins settling scores or fighting turf wars. He would ply them with claret at his favourite London restaurant, L'Ecu de France in Jermyn Street off Piccadilly.

Veteran investigative reporter Chapman Pincher in 1981. PA/PA Archive/PA Images

A landmark Pincher investigation known as “the D-Notice affair” took place in 1967. He revealed that GCHQ was tapping international cables to intercept messages. Though he did not name the agency, it was the first time these Cold War operations were disclosed. There were two D-Notices at the time advising journalists not to disclose such information. Pincher and the secretary of the D-Notice committee, Colonel L G “Sammy” Lohan, had a boozy dinner where the story was discussed. Pincher said Lohan told him that the D-Notices did not cover the story but still advised him not to publish, which he then did. Then prime minister, Harold Wilson, was furious with Lohan, Pincher and the Daily Express. And Lohan resigned.

Wilson may have been furious, but he was known to leak directly to journalists when it suited him. Power is an important ingredient in whether leakers in politics and national security pay a price for their indiscretion. The more lowly you are, the higher your risk of prosecution. No one was going to prosecute a prime minister for leaking even if it involved national security. In one case Wilson held many meetings with two BBC journalists, Barrie Penrose and Roger Courtiour, where he detailed how MI5 was out of control and had targeted him.

The hypocrisy of politicians feigning indignation at the leaks of others is always impressive.

Although May has not sought Scotland Yard’s assistance in the Williamson scandal, the police are regular participants in high-profile leak inquiries. As a reporter I – for most of my career – nurtured sources within law enforcement, intelligence and other public sector agencies and published many “in the public interest” stories from these sources. As part of the investigation team at The Observer, I attended a number of meetings with senior Metropolitan Police detectives investigating the leaks we had published – they would solemnly ask us who had given us the information to which we would respond “no comment”.

Government embarrassment

Embarrassment, although it has no legal standing, can be a big factor when it comes to the decision whether or whether not to prosecute leakers. One story I reported at the time where embarrassment played a major role was of the senior civil servant Clive Ponting. He was prosecuted in 1985 for leaking documents relating to the controversial British torpedoing of the Argentinian cruiser, the General Belgrano, during the Falklands War with the loss of hundreds of lives. Ponting was prosecuted and – despite the judge’s summing up pointing the jury to convict – the jury refused to do so and it was clear they took the view he had acted in the public interest. Ponting’s acquittal was highly embarrassing to then prime minister Margaret Thatcher and her government.

As a result – and despite the removal of a public interest defence from the 1989 Official Secrets Act – officials became much more careful about prosecuting leakers. In the run up to Iraq War in 2003, Katherine Gun, a GCHQ linguist, leaked a top-secret memo that had been sent from the US eavesdropping agency, the National Security Agency (NSA), to the UK’s GCHQ. The memo asked GCHQ to bug the United Nations offices of six “swing” nations whose delegates were to attend a UN Security Council meeting that was going to decide on whether to support the invasion of Iraq. The idea was get a steer on the positions of these swing states so they could be countered in the Bush-Blair war campaign.

The memo was published by reporter Martin Bright in The Observer. Gun was charged with an offence under Section 1 of the Official Secrets Act 1989. But when the case came to court in February 2004 the prosecution declined to offer any evidence and the case was dropped. Gun is now, rather belatedly, seen as a hero. Official Secrets, a Hollywood film of the Gun case, recently premiered starring Kiera Knightley portraying Gun.

Protecting sources

On a few occasions the media have failed to protect their sources, which incites appropriate condemnation. In 1983, The Guardian controversially handed over a leaked document to the government that allowed the identification and prosecution of Foreign Office clerical officer Sarah Tisdall. She, like Gun, on a matter of personal principle had anonymously sent The Guardian photocopies that detailed when American cruise missile nuclear weapons would be arriving in Britain. The documents set out the political tactics Michael Heseltine, then secretary of state for defence, would use to present the matter in the House of Commons. She was sentenced to six months in prison.

In the United States, recent administrations have taken a tougher line on leaks and have dusted off the old Espionage Act of 1917 for this purpose. In 2017, Reality Winner, a 25-year-old Air Force veteran and federal contractor, sent journalists a top-secret NSA intelligence report, which showed that the NSA had collected intelligence suggesting that Russian military intelligence had tried to gain access to electronic voting systems in US states in 2016.

Public interest journalism: Glenn Greenwald in Germany in 2014 with a copy of his book ‘No Place To Hide’. EPA/Tobias Hase

Glenn Greenwald’s news site Intercept published a partially redacted version of the report on June 5, 2017. The US authorities apparently could tell by the Intercept’s published copy of the document that it had been printed out. They discovered only six people with clearance and access to the material had printed it out – and one was Winner. When she was indicted, The Intercept was accused of being careless. They denied this.

As part of a subsequent plea deal, Winner pleaded to one count of violating a provision of the Espionage Act and received a total prison sentence of 63 months (five years and three months), plus three years of supervised release. Winner is the first person to be prosecuted under the Espionage Act since Donald Trump took office. During the Obama administration, the Department of Justice prosecuted eight people under the revived Espionage Act for sharing classified information with journalists.

Dangers of surveillance technology

The massive increase in the surveillance technology capability since 9/11 in many countries poses profound problems for journalism. Investigative journalist Christopher Hird – until 2015, the editor of the Bureau for Investigative Journalism – told me the Edward Snowden revelations will have had a big impact on journalist and source practice.

You have to work on the assumption that if the authorities decide to take an interest in you they will be able to discover nearly anything you are up to, who you are meeting, what research you are doing, who you are talking to and what your networks are. If they so choose it is relatively easy for them to do, and confirms the suspicion one has had for some time, particularly in the digital world – one has to understand it is easier for them to do this than in the past.

The New York Times investigative journalist Scott Shane also made the point to me that contemporary electronic data from phones and other technology enables the tracking of journalists and their sources. He said in the past with FBI leak referrals the first thing they did was fill in a questionnaire as to how many people were cleared for the information: “And it would be giant numbers – say 200 or 5,000 – essentially too big and the FBI would shrug its shoulders,” he said, adding: “That’s changed.” He described the way American officials now hunt down leakers. They are not looking for primary evidence in the first instance, but evidence of knowledge and prior contact.

It’s not that your sources in the national security world send you an email saying ‘Dear Scott, here are the secrets you were asking about’, it’s that they see your story in the newspaper, at NSA or CIA or whatever, they say ‘ah ha, Scott Shane’. They put ‘Scott Shane’ into their government email system and they say: ‘Ah ha, Scott Shane has exchanged emails with these seven people in our agency in the last five years. Two of them he has been in touch with recently. But first of all of those seven people, who of those know about this topic? Oh, two of them know about the topic.’

Therefore tracking down sources is now much easier and Shane says many potential sources are deterred by leak prosecutions.

Investigative journalists now need to consider even their behavioural patterns. This is where you get a good story and it alters your normal pattern of behaviour which can tip off those who are interested that something is going on. Even turning your phone off for periods of time can be a clue that you are on a story.

The pursuit of Fox News reporter James Rosen – who covered the US State Department – was illustrative of the changing approach of the US prosecution. The Justice Department used security badge access records to track his comings and goings from the State Department after he got some insider scoops. They traced the timing of his calls with a State Department security adviser suspected of sharing a classified report. They then obtained a search warrant for the reporter’s personal emails. Eventually they identified his source as Stephen Jin-Woo Kim, a State Department contractor.

Fox news reporter James Rosen with US Secretary of State Condoleezza Rice in 2006. US Department of State

Shane observed that while the two men seem to have used the old counter-surveillance method of face-to-face meetings, the Justice Department used electronic records of phone calls and State Department entry cards to build circumstantial evidence of the two men leaving the building at the same time in the working day and for the same length of time to conclude that they must have been conducting an unauthorised meeting.

The case revealed another sinister development – the government’s characterisation of Rosen as a co-conspirator, rather than a journalist doing his job. Eventually, charges were dropped against him. Kim pleaded guilty to a felony count of disclosing classified information and received a 13-month prison sentence.

You might leave your phone at home when meeting a source which may be used as a clue by investigators, but there are other ways of tracking you – using you electronic travel cards or ATMs can reveal your movements. Increasingly, facial recognition is also becoming a factor. All these can place you near the suspected source at a key moment.

Swinburn, the Daily Telegraph reporter whose report led to Williamson’s sacking, has not revealed who his source was – and nor should he. But it is worth noting that British journalists still have no over-arching right to protect their sources under English law.

Intelligence agencies now have a powerful surveillance technology to track down confidential sources, and can do so much more easily than ever before and it deters sources and whistleblowers. The “chilling effect” of such surveillance technology means that government is less likely subject to effective scrutiny by the fourth estate. The massive expansion of the surveillance state needs to be reeled back in if the public interest is to be properly served.