MI5 security service made “multiple” illegal phone data requests in an attempt to identify a former BBC journalist's confidential sources, a London court has heard.
An investigative tribunal has heard that MI5 unlawfully requested telephone records of reporter Vincent Kearney on “at least” four occasions between 2006 and 2009 while he was working for the BBC in Northern Ireland.
Jude Bunting CC, representing the BBC and Kearney, told the tribunal that MI5 must disclose whether it carried out further surveillance of Kearney and other BBC journalists for legitimate reasons.
“We do not know whether MI5 have made other applications [for communications data] “It was lawful against Mr Kearney,” he said. “We do not know whether MI5 made requests for the telephone details of other BBC employees.”
BBC and Kearney bring legal action against Police Service of Northern Ireland (PSNI)Durham Police, the Metropolitan Police Service and the UK Government over allegations that police and MI5 illegally spied the phones of BBC journalists working in Northern Ireland.
MI5 says it must adhere to its long-standing principle that it cannot confirm or deny (NCND) the existence of other surveillance operations against Kearney or a list of 16 other BBC journalists if the surveillance was carried out legally.
The court heard that in September MI5 revealed that she illegally obtained communications data from Kearney's phone in 2006 and 2009. as part of investigations into people suspected of disclosing national security information to Kearney.
In October, MI5 once again revealed that it had made unauthorized “serial requests” for Kearney's phone data in a bid to identify the journalist's confidential journalistic sources.
One of the statements sought to identify Kearney's “contacts and activities, as well as any conduct that may pose a threat to national security.”
The document, revealed by MI5, reveals “important details” and provides “important information” about how the application process works based on communications data.
Bunting told the court: “Not only do we know that MI5 was pursuing Mr Kearney, but we now know how to do it. We see that there was an established procedure for MI5 to obtain communications data.”
He said MI5's disclosures related to intelligence, procedures and methods and showed that MI5 held telephone bill data.
According to Bunting, not only Kearney's data was obtained, but also the telephone data of other people.
“This is a significant departure from NCND, both in terms of who is being targeted and in terms of intelligence,” he said.
Kearney, currently RTÉ's Northern Ireland editor, did not know how many applications were made, what the purpose of the applications were, when they were made, what period of time they covered, what data MI5 received and what data MI5 retained about Kearney, the court heard.
MI5 also refused to confirm or deny whether it had made further requests for Kearney's data, which it believed to be legitimate, or whether it had made requests for data belonging to a further 16 BBC employees.
“The NCND should not be a flag that we all salute and should not be a blanket exemption from disclosure. It is intended to preserve national security,” Bunting told the court.
He said NCND relied on consistency in its application, but MI5 had largely abandoned NCND in the Kearney case.
“MI5 is already saying it has targeted Mr Kearney after receiving intelligence about his connections. This is a departure from the NCND,” he added. “We now know quite a bit about MI5's operations in relation to how it requests and receives reporting data. We know how it obtains information about journalists' reporting.”
NCND is not always accepted
“People hold the NCND of MI5 in the highest regard and we respect that,” Bunting told the court. “But this tribunal did not always accept the explanations given by the government body.”
In the case of Apple, the court did not agree with the government's arguments that the case should be heard in closed court.
“There are clear logical gaps and inconsistencies in MI5’s approach to NCND,” he said.
Bunting said the concessions made by MI5 prevented lawyers from assessing how Kearney's and the BBC's rights under Article 10 of the European Convention on Human Rights, which allows journalists to protect the identity of confidential sources, were affected.
“The fact that MI5 has provided information about unlawful attacks does not mean there is no reason to provide information about legitimate attacks,” he said.
NCND is a long-standing principle
Richard O'Brien, a spokesman for MI5 and other government departments, said there was often little talk about the reasons for not disclosing information in open court because it could harm national security.
He said MI5 admitted obtaining telephone data in 2006 and 2009 in connection with Kearney's disclosures, which could have been damaging to 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,” O'Brien said.
He said that while it is not a general rule, every deviation from the NCND should be considered with caution as its effectiveness rests on its consistent application.
“The issue of national security also applies to NCND because if you disclose information in one case, there may be inferences about what will be disclosed in another case,” he said.
O'Brien defended MI5's recent disclosure to the BBC of material which showed MI5 tampered with Kearney's personal details on at least two occasions.
The court heard that MI5 had to carry out searches not only of Kearney, but also of 16 individual journalists or BBC staff whose names were provided by the BBC.
“Serious searches require significant work, even if they don't turn up anything important,” he said.
Bunting said it should make no difference to national security whether MI5 disclosed information about legitimate surveillance of Kearney, given that MI5 disclosed details of illegal surveillance.
“I argued that there was no quantitative difference in the national security impact between disclosures that were lawful and disclosures that were unlawful. There was no answer to that question,” he added.
In written statements, he said Kearney and the BBC had failed to take action to protect their individual and journalistic rights.
“They are left in a situation where they, their friends and families, and their journalistic sources know that there has been repeated unlawful interference… but they do not know who, when, for how long or why.”
The case is due to be heard next year.
