December 6, 2013 7:10 pm

The Guardian and the guardians

UK should be wary of prosecuting newspaper over leaks

For the past six months, western governments have been rocked by the revelations made by Edward Snowden. A former contractor to the US National Security Agency, Mr Snowden leaked vast quantities of secret data on US and British surveillance programmes to the media – in particular, The Guardian newspaper.

The Snowden disclosures have stirred impassioned debates about the nature of state snooping in the 21st century, and the adequacy of political oversight over the intelligence services. However, reactions have differed. While the US government has focused its energies on seeking to extradite Mr Snowden to face justice, in Britain there has been more enthusiasm for turning on the messenger.

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This week Alan Rusbridger, The Guardian’s editor, was subjected to hostile questioning in parliament. More seriously, several MPs have been agitating for him to be prosecuted under Britain’s terror laws. The police have confirmed they are looking into the matter. Central to the case constructed by these MPs is the fact that The Guardian passed some of Mr Snowden’s documents to the New York Times to avoid being gagged by the UK courts. Sending secret information out of Britain could be an offence under the 2000 Terrorism Act.

Publication of much of the Snowden material in The Guardian has to date met the public interest test. For instance, news that the NSA has sought to crack the basic encryption used by people operating on the internet is disturbing.

At the same time, the FT is mindful of the potential security risk that flows from publication. The security services already have a hard enough job in tracking terrorists dedicated to destroying public confidence in the state. It is not possible for any newspaper to judge with certainty whether the documents revealed could assist terrorists. But the quantity of data passed by Mr Snowden – including 58,000 classified documents – should concern every citizen.

The prospect of prosecution of journalists over the disclosures does provoke concern. In the US, the freedom of the media to publish leaked information has been entrenched in the constitution since the 1971 Supreme Court ruling in the Pentagon Papers case. While such protection is not guaranteed in Britain, it is hard to see what the basis for any prosecution could be. The Guardian has until now been careful not to disclose the names of intelligence officers and has liaised closely with the UK authorities ahead of publication. In guidelines issued last year, the director of public prosecutions advises against prosecuting journalists for publishing stories that are in the public interest. No case was brought against Katharine Gun, the GCHQ employee who leaked details of UK and US spying before the Iraq war.

The phone-hacking scandal has triggered an epic debate in the UK about press freedom. This has caused tension and mistrust between the media and the government. A decision to prosecute The Guardian would take that conflict to an altogether new level.

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