When the BBC met the Terrorism Act

Why was the laptop of a BBC journalist seized by counter-terrorism police?

Harry Blain
11 November 2015
Flickr/Number 10. CC BY-NC-ND 2.0.

Flickr/Number 10. CC BY-NC-ND 2.0.

‘Newsnight has done a great disservice by giving these insane terrorists the oxygen of publicity. Apart from brutal murders, it’s what they seek most. They are playing into the hands of these terrorists by giving them the opportunity to speak directly to a small group of vulnerable people who may be seduced by their fundamentalist and extreme messages.’ Nigel Evans, MP.

Speaking in August 2014, Nigel Evans was not alone in his condemnation of Newsnight. The former chair of parliament’s Intelligence and Security Committee Dame Pauline Neville-Jones also expressed concern that “a corporation that has a reputation to preserve” would broadcast an interview with the jihadist “Awlaki” (not to be confused with Anwar al-Awlaki), who “talked of ISIS beheading its enemies, said he hated the UK and that he would only return to the country to ‘plant a bomb somewhere.’”

She argued that “[w]e can perfectly well be informed about their views and attitudes without giving them access to mainstream media”, which “gives them a degree of access and a status and an importance they should not be accorded.” The attacks were rounded off by another MP, Michael Ellis, who described the interview as “unnecessary and gratuitous”, giving “free air time and the oxygen of publicity to vile views.”

The journalist who secured this interview was Secunder Kermani, who has “built a reputation for making contact with Western-born ISIS fighters and interviewing them online about their motivations.”

A year after the “Awlaki” interview, Kermani’s laptop was seized by Thames Valley Police’s South East Counter Terrorism Unit under the Terrorism Act. Initially reported last week in the Independent, Thames Valley Police responded to the story swiftly:

“It would be inappropriate to talk about any ongoing live investigation; however the South East Counter Terrorism Unit (SECTU) regularly conducts investigations where items may need to be examined… In order to obtain a court order officers would have to satisfy the Crown Court that there were sufficient grounds to justify the issue of a Production Order under the Terrorism Act. The Respondent in any such process can contest the Order which can then be heard at a higher court. In this particular case, the BBC attended the hearing in August and did not contest the application or decision of the court. Police have since returned the laptop that was the subject of this Order.”

If the BBC didn’t actually contest the decision – and has admitted that Kermani was not ordered to hand over communications with a “confidential source” – why the outcry from the Committee to Protect Journalists, the National Union of Journalists, and media lawyers?

“Anyone else find this worrying?”

A closer look at the details can give us an idea. First is the fact that, according to a BBC spokesman, the Corporation “did not resist Thames Valley’s application for an order under the Terrorism Act in court because the act does not afford grounds under which it could be opposed.” “It is troubling”, he continued, “that this legislation does not provide the opportunity for the media to mount a freedom of speech defence.”

Second, as the NUJ General Secretary pointed out, even if this Order pertained to communications with a specific individual, “[t]here are serious questions to be answered about why the order obtained by the police warranted the seizing of a journalists’ laptop – which may well have contained confidential information on other sources and other stories too.”

And, of course, there’s the way in which this incident fits with a broader picture: the extraordinary attacks launched by elected officials on Alan Rusbridger and the Guardian following Edward Snowden’s leaks; the nine-hour detention of David Miranda at Heathrow Airport in 2013 under the Terrorism Act (the subject of an ongoing legal battle); and David Cameron’s “draconian, stupid and economically destructive” suggestion of a ban on end-to-end encryption in online messages.

In this context, it is no surprise that the Guardian’s Gillian Phillips looked at Kermani’s case and asked on Twitter: “Anyone else find this deeply worrying?”

Nothing new?

The image of British politicians accusing the BBC of giving “oxygen” to “vile views” is not a new one. As I’ve written previously, there’s a long history of governments – Labour and Conservative alike – labelling the Corporation “disloyal” to the nation. The hysterical response to a three-hour 1972 television special addressing different potential solutions to the Northern Ireland “question” was a prime example.

This is a problem that any public broadcaster has to face when covering issues of national security, surveillance and counter-terrorism: air the voices of “enemies” and risk backlash, or ignore them and leave us with the dominant narrative laid down by the state and an often supine press. In a sense, then, the seizure of Kermani’s laptop is simply a case of the BBC going into what has always been dangerous territory, and facing the inevitable consequences.

Some would even argue that the BBC was asking for it. The Corporation does perhaps have a history of seeking the TV/radio equivalent of “click-bait” by, for example, inviting the radical cleric Anjem Choudary on to a Radio 4 Today programme debate about the horrific murder of the soldier Lee Rigby in December 2013 (“Why do media keep giving a platform to Anjem Choudary, a hateful extremist who doesn't speak for British Muslims, other than to troll us?”, Owen Jones tweeted).

Future questions

But to make such an argument misses the point.

We now have a draft Investigatory Powers Bill which “[r]equires web and phone companies to store records of websites visited by every citizen for 12 months for access by police, security services and other public bodies”; “[m]akes explicit in law for the first time security services’ powers for the ‘bulk collection’ of large volumes of personal communications data”; and “[m]akes explicit in law for the first time powers of the security services and police to hack and bug into computers and phones.”

What will this mean for those, like Secunder Kermani, whose reporting has relied on protection of sources and secure online communication? What will it mean when the BBC is already apparently unable to mount a freedom of speech defence when a judge demands a journalist’s laptop?  Can we trust the British authorities not to use their powers to target journalists, when we have police forces tackling peaceful protesters to stop them from inconveniencing Xi Jinping?   

If cases like Kermani’s can easily drift into obscurity, then they will keep happening. BBC spokespeople will complain and be ignored; politicians and the press will keep talking furiously about “oxygen”, “publicity” and “airtime”; and the scope of national debate will continue to narrow.  

For some, this won’t be a tragedy. But in order to actually fight the views that we find abhorrent or “vile”, at some point we’re going to have to listen to them. If the BBC is bringing such views to our attention, we should be mature enough to discuss, analyse, and argue – and protect those who are bold enough to ask the questions in the first place.

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