At the Home Affairs Committee hearing yesterday (3 December 2013), the editor of the Guardian newspaper, Alan Rusbridger, was called as a witness for the Committee’s counter-terrorism evidence session. The Home Affairs Committee is a select committee of the House of Commons.
There will be much comment written about this part of the session. There are some key questions that can be raised. Was it appropriate to call Alan Rusbridger before the Committee? Did his evidence assist the Committee in any way with any aspect of an investigation into counter-terrorism? Where should the balance lie between the privacy of the citizen and mass surveillance by the State for counter-terrorism purposes? To what extent should the freedom of the press be curtailed in the interests of anti-terrorism and the security services?
Here, I am only going to address the key question raised directly or indirectly by the Committee member Michael Ellis MP, the barrister and Conservative MP for Northampton North. Did the Guardian breach FedEx UK terms and conditions by having information leaked to them by Edward Snowden couriered to the New York Times?
Given that Mr Ellis saved this question to be his last to Alan Rusbridger, it is clear that Mr Ellis considers this is a question of fundamental importance.
FedEx UK Conditions of Carriage (effective 2 January 2013) include at Condition 4.4:
4.4 – The following items are not acceptable for carriage to any destination unless otherwise expressly agreed in writing in advance with the Carrier:
4.4.8 – PROPERTY THE CARRIAGE OF WHICH IS PROHIBITED BY ANY LAW, REGULATION OR STATUTE OF ANY COUNTRY FROM, TO OR THROUGH WHICH ANY SHIPMENT MAY BE CARRIED;
No other term appears to be relevant. It is difficult to imagine that any physical media that the Guardian may have used for the transmission of the leaked information would be subject to any specific prohibition from carriage. Whilst proving a negative is a tricky exercise, it is safe to assume that the media used was lawful for the purposes of carriage.
So how else might the carriage of the information be prohibited?
Perhaps, by purposive interpretation of section 5 of the Official Secrets Act 1989 (in particular section 5(6)), we can decide that sending information by courier that the sender had reasonable cause to believe has come into his possession in breach of section 1 of the Official Secrets Act 1911, is ‘carriage which is prohibited by law’ for the purposes of the FedEx UK condition.
So can the Guardian be considered to have reasonable cause to believe that the Snowden information was disclosed to it in breach of the section 1 provision? There are some obvious problems here. Firstly, any obtaining of the leaked information by Snowden was done by an American citizen in the United States of America. This must surely be outside of the extent of the Official Secrets Act 1911, as set out in section 10. On this basis alone, it can be argued that section 5(6) of the 1989 Act does not apply.
This leaves only the primary provisions of section 5 of the 1989 Act. In particular, has the Guardian made an unauthorised disclosure of information under section 5(2) of the 1989 Act? Although the Guardian is clearly not a civil servant or government contractor, it is possible to draw a chain of confidence from the UK source of any information, through Edward Snowden, to the Guardian under section 5(1) of the 1989 Act, so that section 5(2) applies. However, there is a defence to a section 5(2) offence at section 5(3). This, in short, would require the Guardian to prove that its disclosure was not damaging. In considering what is damaging, reference has to be made to the defence set out at section 2 of the 1989 Act, which includes, at section 2(2):
… a disclosure is damaging if—
(a) it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or
(b) otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or
(c) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.
It would be interesting to see this argued before a jury. I suspect a verdict in favour of the Guardian would be returned, even if it would be perverse verdict similar to the not-guilty finding of the jury in the Clive Ponting case (R v Ponting  Crim LR 318 – leak of documents by an MoD civil servant to an MP, which showed that the General Belgrano had been sighted by HMS Conqueror a day before officially reported, and was steaming away from the Royal Navy taskforce outside the Falkland Islands exclusion zone when it was attacked and sunk. It was a result of the failure of this prosecution that section 2 of the Official Secrets Act 1911 was repealed, with the Official Secrets Act 1989 replacing it.)
Lastly, there was a suggestion made during the session in which the Guardian editor was questioned that the Guardian could be under investigation under the Terrorism Act 2000, in particular section 58A of the 2000 Act:
58A Eliciting, publishing or communicating information about members of armed forces etc
(1) A person commits an offence who—
(a) elicits or attempts to elicit information about an individual who is or has been—
(i) a member of Her Majesty’s forces,
(ii) a member of any of the intelligence services, or
(iii) a constable,
which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) publishes or communicates any such information.
(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.
Again, it would be interesting to hear the Guardian’s defence of “reasonable excuse” argued before a jury.
However, in the absence of any conviction under the 1989 Act or 2000 Act, with the Guardian reasonably able to believe that it has a defence to any relevant charge, it is hard to see that it has breached the terms of carriage of FedEx. The claim that the Guardian had was clearly a desperate, cheap shot.