european court of human rights – Courage Foundation

Reports about an impending prosecution shows that Germany is pulling in opposite directions on whistleblower protection. On Friday, Der Spiegel suggested that the federal government is planning to prosecute an unknown whistleblower for revealing official secrets that were reported in that publication and the Süddeutsche Zeitung.

The news of this investigation comes as Germany’s official inquiry into surveillance, launched in the wake of Edward Snowden’s revelations, becomes increasingly mired in protracted arguments over the disclosure of information that implicates Germany’s spy agencies as much as it does the NSA. Despite attempts to restrict the documentation and witnesses available to the inquiry, it has so far revealed loopholes Germany’s signals intelligence agency, the BND, uses to circumvent the prohibition on German nationals and new details about controversial joint operations with the NSA.

The German government has reacted poorly to these disclosures, to the point of warning of possible prosecution should further information reach the media.

Improving Germany’s whistleblower laws

Given that Germany is one of the countries that has shown the strongest support for Edward Snowden – a recent survey shows that the NSA whistleblower has better public recognition there than the US – the country’s own whistleblower protections are surprisingly poor. A 2011 judgment from the European Court of Human Rights has yet to be reflected in domestic law and, as a result, Germany’s truthtellers have to wait for employment tribunals to rule in their favour, by which point employer retaliation is already a fait accompli.

Last month, Germany’s Green representatives, led by Hans-Christian Stroebele, proposed new legislation to improve the situation. On his website, Stoebele explains that the bill is intended to “significantly improve whistleblowers’ protection from employer retaliation or dismissal and to improve legal certainty.”

This isn’t the first time the German Greens have tried to introduce a law like this, but this latest attempt is notable because it has the potential to do more than bring Germany into the mainstream of legal protections for whistleblowers. Provisions in the bill promise to erase the artificial divide that leads to national security whistleblowers facing severe retribution without the protections other public employees enjoy. Stroebele has been clear that the Bill specifically covers cases where a secret service employee “discloses confidential information to uncover a serious grievance, such as massive violations of fundamental rights.”

Protecting alleged sources before charge

Alleged sources who are under investigation and unable to come forward publicly find themselves in a particularly invidious position and in real need of support. Courage runs the only fund designed to guard alleged truthtellers who are obliged to remain anonymous.

In the summer of 2013, many wondered why journalists in the UK, one of the countries most implicated in mass surveillance, didn’t pursue Edward Snowden’s revelations more aggressively. Even when the British government began to directly intimidate those who were reporting on the Snowden documents – by detaining David Miranda under anti-terrorism legislation and insisting that they should be able to destroy computer equipment within the Guardian offices – protest against these actions in the UK media was muted, with a significant section of the UK press deciding to stand up for the rights of the UK state rather than the freedom to report.

That may now, belatedly, be changing. A new scandal has demonstrated that journalists have a real interest in fighting surveillance – and that current UK practices put source protection right in the firing line. This month, London’s Metropolitan Police published a report that confirmed they had used surveillance powers to obtain the phone records of Sun journalist Tom Newton Dunn without his knowledge in order to find out who his source was.

This direct threat to journalists’ interests has focused attention on just how routine communications data (metadata) orders are in the UK. Unlike ‘live’ intercepts of data or content, which require a court order, British public bodies can obtain historical metadata simply by making a request to a telecommunications provider for any data they hold. There is no judicial involvement in these orders, about half a million of which are made in the UK every year. Even the official charged with overseeing these orders has admitted that the 514,608 requests made in the UK in 2013 “seems to me to be a very large number. It has the feel of being too many.”

There are few safeguards on the use of these orders under the UK’s Regulation of Investigatory Powers Act (RIPA). In particular, RIPA makes no provision for the protection of information that might relate to journalists’ communication with sources, or indeed communications with lawyers. The ability of police to effectively obtain metadata at will means that many, if not most, journalists in the UK are no longer able to offer their sources an assurance of confidentiality. Recent changes to UK surveillance laws suggest that journalists and lawyers should now treat online services and webmail with a similar degree of caution.

Journalists have responded to the Metropolitan Police’s report with op-eds and a Save our Sources campaign. The absence of safeguards in the law is now also the subject of a legal challenge launched in the European Court of Human Rights by the Bureau of Investigative Journalism, the third such challenge to be made to the UK’s surveillance practices since the start of reporting on Edward Snowden’s revelations.

Gavin Millar QC, who is aiding the Bureau of Investigative Journalism with the case, has said that police “routinely” use RIPA powers to obtain journalists’ metadata and identify their sources:

This circumvents the rights of a journalist to protect a source and to a hearing before a judge before any order is made to disclose such information.

The sheer volume of data being harvested by GCHQ under RIPA means that confidential journalistic material is also being covertly accessed and analysed by security and intelligence all the time. Again sources are being identified – but on a much larger scale.

Yet there is no word in RIPA or the government’s code of practice under it about these key journalistic rights. The UK simply flouts the Convention.