Submission to LegCo on Interception of Communications and Surveillance (Amendment) Bill 2015

HKJA Submission to the Legislative Council on the Interception of Communications and Surveillance (Amendment) Bill 2015
1. The Interception of Communications and Surveillance (Amendment) Bill put forward by the government more than a year after the public consultation is primarily concerned with enlarging the supervisory power of the Commissioner on Interception of Communications and Surveillance, but it has not yet responded to demands for the increasing of protection for journalistic material requested by the press long ago. The Hong Kong Journalists Association (HKJA) expresses its regret and urges the Legislative Council to add a provision allowing journalistic material to enjoy the same protections accorded to Legal Professional Privilege (LPP), to ensure that news sources cannot to be arbitrarily surveilled, as this would increase obstacles for the press to obtain information and further curtail the public’s right to information.
Commissioner Must Ensure No Leakage of Journalistic Material during Checking 
2. The Interception of Communications and Surveillance Ordinance has been implemented for almost 10 years. Its supervision merely relies on the Commissioner on Interception of Communications and Surveillance. According to the annual reports in the past 5 years (2009-2013), the rate of approval of the applications for examination and applications for renewed examination granted by the panel judge were up to 97-99%, apart from the year 2009, which was 83%. It is not known whether the high rate of approval was due to the overly tolerant handling by the panel judge or the high level of self-limitation on the power of the law enforcement agencies. Even the Commissioner can only make a determination according to the applications and reports written by the law enforcement agencies, without being able to check the raw material.
3. HKJA, therefore, welcomes the granting to the Commissioner the power to listen to the content surveilled by the law enforcement officers. HKJA believes that article 53(1)(a) of the Bill and related amendment are correct and positive. It would help the Commissioner to fulfil the role as the “gatekeeper”. The Commissioner would no longer depend merely on reading the officers’ written reports, but be able to listen to the content of conversation. He or she would then be able to check all the cases of journalistic material being intercepted or obtained through secret surveillance with first-hand information, with the aim to investigate whether the surveillance held by the officers are necessary and without violation. It could have a deterrent effect and prevent abuse of power, thus increasing the confidence of the public in the provision.
4. However, once the Commissioner is permitted to check the raw material, the Commissioner can also directly review the protected journalistic material, and even the source of the secret information. With regards to this, HKJA stresses that when applying such power, the Commissioner must ensure that the related content can only be used for checking the officers’ behaviour and that there should be mechanisms to prevent the content from being leaked. The protection must be written clearly into the provision.
Journalistic Material is Still under Threat of Abuse on Interception 
5. Furthermore, HKJA expresses regret over the fact that the amendment bill does not have clear protection of journalistic material, which had been requested by the press.
6. According to the current Interception of Communications and Surveillance Ordinance, the law enforcement department must evaluate the likelihood that any information containing journalistic material may be obtained by carrying out the interception by filing an affidavit to the panel judge. The code of practice of the ordinance also states that “the Commissioner should also be notified of cases where information which may be the contents of any journalistic material has been obtained or will likely be obtained through interception or covert surveillance operations.” However, under such circumstances there is a high risk that journalistic material will already have been leaked out. Besides, notifying the Commissioner does not necessarily mean that the interception is abandoned or that such materials will not be obtained. Therefore, the current protection is not enough.
7. In fact, the former Commissioner Woo Kwok-hing commented in the first Annual Report (2006) that “journalistic material is not given as much prominence in the body of the Ordinance as LPP save in the various provisions”. HKJA emphasizes that the provision must resemble the provision for the protection of LPP by introducing “Privilege of Journalistic Material”, in order to ensure that normal journalistic work is clearly protected by the legal provisions.
8. HKJA searched through the Annual Report of the Commissioner on the Interception of Communications and Surveillance in the past 8 years, and discovered that there were 7 cases of officers surveilling journalistic materials during interception between Aug 2006 and December 2013. Some cases reflect the low sensitivity of the law enforcement officers or judicial officers on judging journalistic material.
9. The HKJA Submission to the government in July 2013 had listed the 4 cases up to the end of 2011 that may contain violations. They show that officers still intercepted after knowing that it was or could be journalistic material, and continued surveilling without following the regulation to notify the panel judge immediately. There were also examples showing that the panel judge noticed the possibility of obtaining journalistic material when the law enforcement agency filed the application for examination, but no additional conditions to the interception were made because the panel judge believed that it was not necessary.
10. According to the 2012 Annual Report where 3 cases were mentioned, the law enforcement agencies claimed that they had stopped intercepting after knowing that they were surveilling journalistic material, and reported to the panel judge in accordance with the regulation. The panel judge had also canceled the authorization of the related surveillance. However, the Commissioner added in Paragraph 5.17 that as the Commissioner does not have the authority to listen to the surveilling result, the Commissioner cannot be entirely sure whether “any other communications which might have contained JM (Journalistic Material) in the interception products” were surveilled, apart from reading the conversation reported by the law enforcement agencies. Hong Kong citizens and the press have even less power to supervise whether there is any abuse of authority.
11. In addition, the above cases have shown that whether the surveilling cases had been abndoned in time or the conversation between the journalist and the news source had been intercepted, the right of the person being intercepted had been damaged. The responsibility of the journalist to protect the identity of the news source was also being undermined without any of the parties knowing it. It would affect the public’s confidence towards the press on revealing information. Once the news sources hesitate or become unwilling to reveal information related to the public interest, the ability of the press to supervise social injustice and the inappropriate acts by the authorities will be greatly weakened, thus the public’s right to information will be damaged.
12. HKJA must emphasise that protecting the identity of the news source is an important act in defending press freedom. The conversation with the news source should avoid being intercepted by law enforcement officers. HKJA urges the government to treat it as equally important as LPP and make clear provisions for its protection. It should also specify that the law enforcement agencies must assess the possibility of obtaining the privilege of journalistic materials in the affidavit. If there are changes that may affect the assessment in the future, the law enforcement must hand in a report to the panel judge, so that the panel judge can decide whether to cancel the authorization of interception or whether it is necessary to include additional conditions while continuing the interception. As for the journalistic material intercepted before the changes of authorization, they should not be used and should be destroyed, in order to ensure no leakage of conversation between the journalists and the news sources.
Policies on Protection of Journalistic Material Should Be Consistent 
13. According to the session 82-88 of the current Interpretation and General Clauses Ordinance, examination on journalistic material must be carried out in accordance with a set procedure, which shows the sensitive nature of journalistic material and the need to be protected, in order to implement Article 27 of the Basic Law on protecting freedom of speech, of the press and of publication. However, the current Interception of Communications and Surveillance Ordinance and the amendment of the Bill both have not responded to the requests made by the press, which causes the freedom of speech to be under threat. It also causes discrepancies between the level of protection on journalistic material, which is against the principle of policy coherence.
14. As the United Nations Human Rights Committee published the General Comment No. 34 in 2011 to set detailed guidance on the freedom of expression of the International Covenant on Civil and Political Rights (ICCPR), numerous democratic countries have taken measures to cancel unreasonable and indirect restrictions on press freedom. HKJA hopes that Members of the Legislative Council can urge the Hong Kong government, which claims to respect press freedom, to comply with the trend of democratic countries and add the privilege of journalistic materials in the current bill, in order to protect press freedom.
Hong Kong Journalists Association
2 May 2015
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