The UK government is considering new laws that target whistleblowers and journalists who obtain or share state secrets. Draft legislation proposed as part of an upcoming overhaul of the UK’s Official Secrets Acts (OSA) could see individuals jailed for up to 14 years for handling leaked information. This is a substantial increase from current laws, which carry a punishment of up to two years’ jail time and an unlimited fine, but only cover the disclosure of such leaked secrets.
Advocacy groups have criticized the plans as a “full-frontal attack” on whistleblowers, with one expert describing the legislation as “squarely aimed at The Guardian and Edward Snowden.” Jodie Ginsberg of the UK’s Index on Censorship told The Telegraph: “The proposed changes are frightening and have no place in a democracy [...] It is unthinkable that whistle blowers and those to whom they reveal their information should face jail for leaking and receiving information that is in the public interest.”
The 326-page advisory document (which can be seen here, courtesy of The Register) was drawn up by the Law Commission, an independent body that helps the UK government with matters of legal reform. The Commission proposes that the crime of espionage is redefined so it can be applied to someone who “not only communicates information,” but “obtains or gathers” it.
The report suggests that confidential economic data could also be protected under espionage laws (“as far as it relate to national security”), and that leakers should not be able to make the legal claim, if prosecuted, that disclosing government secrets is in the public interest. “Such a defence would allow someone to disclose information with potentially very damaging consequences,” states the report. “The person making the unauthorised disclosure is not best placed to make decisions about national security and the public interest.”
A number of UK whistleblowers have been critical of this omission. Katharine Gun, a former GCHQ translator who revealed the agency’s plans to bug UN offices in the run-up to the Iraq war, told The Guardian that the law needed to offer “protection for whistleblowers.” She added: “As it stands, the OSA is reputedly one of the most draconian secrecy laws in the world. It seems to me to have been very effective at dissuading and preventing the 99.9% of British citizens who have signed to it from making unauthorised disclosures.” Gun was charged under the OSA in 2003, but the case was dropped, reportedly over worry about the political fallout.
The Law Commission’s report states that the need to increase the punishment for potential whistleblowers matches the danger posed by such leaks. “In the digital age, the volume of information that can be disclosed without authorisation is much greater than when the Official Secrets Act 1989 was originally drafted,” says the report. “It could be argued that this means that the ability to cause damage to the national interest and the risk of such damage occurring has also increased.”
Under these suggested laws, The Guardian’s former editor Alan Rusbridger could have faced criminal charges for the paper’s part in publishing the Snowden leaks in 2013. These revealed the existence of secretive (and illegal) surveillance apparatus in the UK and the US. Jim Killock of the Open Rights Group told The Verge that the proposed legislation is an attempt to “make sure that the public never hears about any wrongdoing or lawbreaking by the security agencies.”
The report is simply advisory at this point, and the Law Commission is now holding an open consultation until April 3rd to solicit opinions on its suggestions. After that, a second report will be published, which might include a first draft of the newly christened Espionage Act.