The Security Service, MI5, made “multiple” unlawful applications for phone data in an attempt to identify the confidential sources of a former BBC journalist, a London court has heard.
The Investigatory Powers Tribunal heard that MI5 unlawfully sought the phone records of reporter Vincent Kearney on “at least” four occasions between 2006 and 2009 when he worked for the BBC in Northern Ireland.
Jude Bunting KC, representing the BBC and Kearney, told the tribunal that MI5 should disclose whether it had carried out further surveillance against Kearney and other BBC journalists for what it regards as lawful reasons.
“We don’t know whether MI5 made other applications [for communications data] that were lawful against Mr Kearney,” he said. “We don’t know whether MI5 made applications for the phone data of other BBC employees.”
The BBC and Kearney are bringing a legal challenge against the Police Service of Northern Ireland (PSNI), Durham Constabulary, the Metropolitan Police Service and the UK government over allegations that police and MI5 unlawfully spied on the phones of BBC journalists working in Northern Ireland.
MI5 argues that it needs to uphold the longstanding principle that it can neither confirm nor deny (NCND) whether it carried out other surveillance operations against Kearney or a list of 16 other BBC journalists, if the surveillance was carried out lawfully.
The court heard that MI5 had disclosed in September that it had unlawfully obtained the communications data from Kearney’s phone in 2006 and 2009 as part of investigations into people suspected of disclosing information relating to national security to Kearney.
MI5 made a further disclosure in October that it had made unauthorised “sequential applications” for Kearney’s phone data intended to identify the journalist’s confidential journalistic sources.
One application aimed to identify Kearney’s “contacts and activities and any behaviour that may be a threat to national security”.
The document disclosed by MI5 revealed “significant detail” and provided “significant information” about how the application process from communications data worked.
Bunting told the court: “Not only do we know MI5 targeted Mr Kearney, but we now know how. We can see that there was an established procedure for MI5 to obtain communications data.”
He said the disclosure from MI5 referred to operational data, procedures and techniques, and showed that MI5 holds telephone billing data.
It was not just Kearney’s data that was obtained, but other people’s phone data was “scooped up” at the same time, said Bunting.
“This is a significant departure from NCND, both in terms of who is being targeted and operational data,” he said.
Kearney, currently Northern Ireland editor at RTÉ, did not know how many applications were made, what the aim of the applications was, when they were made, what time period they covered, what data MI5 obtained and what data MI5 has retained about Kearney, the court heard.
MI5 has also refused to confirm or deny whether it made further applications for Kearney’s data, which it considered lawful, or whether it had made applications for data belonging to another 16 BBC employees.
“NCND is not supposed to be a flag we all salute, nor is it supposed to be a general exemption from disclosure. It’s meant to preserve national security,” Bunting told the court.
He said NCND relies on the consistency of its application, but MI5 had waived NCND in significant ways in the Kearney case.
“MI5 states already that it targeted Mr Kearney by obtaining his communications data. That is a departure from NCND,” he added. “We know considerable detail now about MI5 operations in respect of how it applies for and obtains communications data. We know how it obtains information about journalists’ communications.”
NCND not always accepted
“People treat NCND from MI5 with particular deference and we respect that,” Bunting told the court. “But this tribunal has not always accepted the explanation a state body has given.”
In the case of Apple, the tribunal disagreed with the government’s arguments that the case should be held in a closed court.
“There are clear logical gaps and inconsistencies in the approach that MI5 have taken to NCND,” he said.
Bunting said the concessions made by MI5 do not allow lawyers to assess how Kearney and the BBC’s rights under article 10 of the European Convention of Human Rights – which allows journalists to protect the identity of confidential sources – are affected.
“The fact that MI5 provided information with respect to targeting that is illegal does not mean there is no reason to provide information about targeting that was legal,” he said.
NCND is a long-standing principle
Richard O’Brien KC, acting for MI5 and other government departments, said it was very common for little to be said about the reasons for not disclosing information in open court because that could damage national security.
He said MI5 had conceded that it obtained phone data in 2006 and 2009 in relation to disclosures made to Kearney that could have damaged national security.
“It has been the policy of successive governments to neither confirm nor deny whether an intelligence service carried out a particular operation against individuals or groups, or what information was obtained,” said O’Brien.
He said that although it is not a blanket rule, every departure from NCND must be considered with care because its effectiveness is based on its consistent application.
“The issue of national security also applies to NCND because if you disclose information in one case, there could be inferences about what is disclosed in another case,” he said.
O’Brien defended MI5’s late disclosure to the BBC of material that revealed it had interfered with Kearney’s personal data on at least two occasions.
The court heard that MI5 had to carry out searches not just on Kearney, but on 16 individual journalists or BBC employees whose names were provided by the BBC.
“Substantial searches require considerable work even if they don’t reveal anything of import,” he said.
Bunting said it should make no difference to national security whether MI5 disclosed information in relation to lawful surveillance of Kearney, given that MI5 had disclosed details of unlawful surveillance.
“My submission was that there was no quantitative difference to the impact on national security with respect to disclosures that were lawful and disclosures that were unlawful. That question has not been answered,” he added.
He said in written submissions that Kearney and the BBC were unable to take steps to protect their personal and journalistic rights.
“They are left in the situation where they, their friends and families, and their journalist sources know that there were repeated unlawful interferences … but they do not know who by, when, for how long or why.”
The case is due to be heard next year.
