Secrecy across the pond

British journalists feel the chill under the Official Secrets Act, and a bill in the Senate could have similar effects in the United States.

From the Fall 2006 issue of The News Media & The Law, page 9.

By Heather Shoenberger

In November 2005, Britain’s attorney general threatened British newspapers with prosecution if they published the contents of a conversation between President Bush and British Prime Minister Tony Blair discussing their disagreements about the Iraq war.

They used the threat of the Official Secrets Act, a World War I-era British law that prohibits disclosing government information without “lawful authority.”

The Blair government had never before used prosecution as a tool to persuade editors to halt publication, although it had obtained court orders preventing the publication of sensitive documents regarding the Iraq war.

Throughout the history of the Official Secrets Act, the British government has used the act to charge reporters with crimes, prevent important stories from being published or broadcast, and punish government officials who leak to news organizations.

The law is aimed less at journalists than at their sources. But experts such as Alistair Bonnington, a Scottish media lawyer with BBC Scotland, say that when authorities use the law to threaten editors or silence sources, it prevents the dissemination of information.

“Any time the act is used, it has a chilling effect,” he said.

That is just one of the concerns critics of a similar bill proposed in the United States have if the bill is passed.

The act’s history and use

The British Official Secrets Act was adopted in 1911 when national security was compromised by impending war with Germany. While similar legislation had been proposed before and defeated, national anxiety over growing international hostilities helped pave the way for passage of the act.

The act made it illegal for government employees or contractors to disclose sensitive information about the national defense without lawful authority.

The act is primarily targeted at government officials, not journalists. Still, British authorities have sometimes used the law to intimidate the media into not running stories.

Two journalists, Duncan Campbell and Crispin Aubrey, were fined under the Official Secrets Act in 1978 for receiving information from a former intelligence officer, John Berry. Berry was imprisoned for six months and fined.

In 1987, BBC Scotland was compiling information for a series of programs called “Secret Society,” which featured coverage of secret cabinet committees, one of which dealt with the government’s purchase of a spy satellite. Before the stories aired, police raided the BBC building and confiscated the tapes, all but one of which were later returned and ran on BBC.

Bonnington said no arrests were made during the raid, but one of the programs in the series never aired as a result of the investigations.

Since then, media prosecutions for violating the Official Secrets Act have been rare, but the law makes it more difficult for the media to report on security issues by increasing the chances that potential sources will be prosecuted for leaking information to the media.

British media attorney Mark Stephens said the act chills free speech and freedom of information because it encompasses a wide and vague scope of information that is secret, making it difficult for potential sources to know what would be a violation of the act.

“It is a violation … of the Official Secrets Act for me to tell you the color of the carpets in the MI6 building,” Stephens said, referring to the building that houses Britain’s international intelligence agency.

And if government employees break rank and leak information, “they will be prosecuted,” Stephens said. “That way the government can instill fear in the employees still in their grasp.”

British civil servant David Keogh and former researcher Leo O’Connor have been charged with violating the Official Secrets Act for leaking damaging information from the Bush-Blair document.

In 1980, Sarah Tisdall, a British civil servant, was sentenced to six months in prison for anonymously leaking information about the arrival of American weapons in Britain to The Guardian. Tisdall’s conviction silenced potential sources in the government, according to Bonnington.

Working with the government

Britain’s Official Secrets Act has arguably led to other forms of press censorship. The British press voluntarily relies on prepared government documents known as D-notices that offer guidelines on what the press can print without legal authority.

D-notices were created in 1912 as a way to prevent the press from reporting information that could be used by an enemy. They are distributed to newsrooms and posted on the Internet by a committee made up members of the government and the media, chaired by the permanent undersecretary of state for defense.

Some British reporters say relying on the government’s D-notices is simply a matter of professional standards, saying journalists don’t want to print information that could be helpful to terrorists.

But the D-notices can still have a chilling effect on the media, Stephens said, because publishing a story that exposes government secrets covered by a D-notice could lead to the prosecution of the source for that story, as in Tisdall’s case.

“Punishing the sources is a deliberate tactical ploy to chill freedom of the press,” Stephens said.

James Risen, on of the New York Times reporters who broke stories about the National Security Agency’s domestic eavesdropping program and the government’s monitoring of overseas banking transactions, said the Official Secrets Act is responsible for the “tabloidization” of the British press because reporters fear the government’s reaction to critical news.

“The reason British media has so much tabloid material is because they are unable to report on real issues,” he said at a National Press Club luncheon on Sept. 28.

Risen gave the example of Dana Priest’s Pulitzer Prize-winning stories in The Washington Post unveiling secret CIA prisons in Europe used to interrogate suspected terrorists.

“No European paper was able to confirm anything she wrote, even though it was all true,” he said, attributing their failure to follow the story to the British Official Secrets Act.

Risen said the ability of reporters to cover stories without fear of imprisonment and of sources to be able to convey information without fear that reporters may be forced to reveal their identities is essential to inform the public.

Even so, Stephens said, British juries are sympathetic to journalists and even government workers in Official Secrets Act cases when it is clear the public had a right to know.

In 1984, Clive Ponting, a senior-level government employee, was charged under the Official Secrets Act for leaking a document about an Argentinian ship that the British navy sank, killing 360 people, during the 1982 Falklands War.

The jury acquitted Ponting despite the judge’s order to find him guilty.

Though Bonnington said the Official Secrets Act works to prevent reporting on important government issues, he attributes the admittedly tabloid-like nature of the British media to British taste.

“American papers are too boring,” he said. “They wouldn’t sell in the U.K.”

Official secrets in the United States

A major concern for free-press advocates in the United States is a bill recently introduced by Sen. Christopher “Kit” Bond (R-Mo.) that would criminalize the disclosure of information that was not authorized by the government, which many have dubbed an American version of the British Official Secrets Act.

The bill includes the same language of two previous bills, one of which was vetoed in the past. In August, Bond argued the bill was needed in light of recent unauthorized leaks to the media like the NSA wiretapping story and CIA secret prisons.

“Each leak is a window of opportunity for terrorists to discover our sources and methods,” Bond said.

Like the British Official Secrets Act, the Bond bill criminalizes the unlawful disclosure of information by anyone authorized to receive it, usually government employees.

Critics say the Bond bill would chill the information flowing from government officials to the public, as they say the Official Secrets Act does, by forcing the press to rely on government press releases and authorized leaks that would likely assert the government’s agenda.

Kevin Goldberg, an attorney for the American Society of Newspaper Editors, is especially troubled by the broad definition of classified information, which is information the person “knows or has reason to believe has been properly classified.”

“This is the vaguest part of the act,” Goldberg said. “The information doesn’t have to be stamped classified.”

The vague definition may cause some of the information in the “middle ground” to be kept secret, Goldberg said.

“A government employee who comes across a document marked sensitive is going to say ‘I’m not giving this out’ because it could become marked classified or it might be classified,” he said.

Media advocates in the United States worry the Bond bill, which was introduced in Congress in August, will discourage potential sources from communicating with reporters, ultimately affecting coverage of the government as they see in Britain.

The pressure on journalists to reveal sources in the United States is already high with recent high-profile subpoenas such as that of former New York Times reporter Judith Miller. The Bond bill invites the possibility for even more aggressive prosecution of sources that would lead to the subpoenaing of journalists to reveal those sources.

Some fear American reporters are already in as much danger as British journalists, even without an Official Secrets Act.

Richard Esposito of ABC Nightly News decried the current climate toward reporters at the National Press Club talk.

“We are not criminals,” he said, “but when reporters are using throwaway phones to talk to sources so we can protect their identities, we feel like them.”