An 8th reason why the Interception of Communications Commissioner should go

I’ve previously blogged about the catastrophic failure of the Interception of Communications Commissioner, giving seven different failures, any one of which would be damning but cumulatively make the post a good entrant for ‘most failed regulator’.

They included such failures as ignoring warning signs of widespread law breaking:

And finally, and perhaps most damningly once all the evidence is in, there is the little matter of the alleged repeated law breaking that the Interception of Communications Commissioner appears to have completely ignored.

The New York Times 2011 investigation into phone hacking included allegations that journalists were regularly breaking the law by paying for illegal access to communications data, most likely by abusing RIPA powers. These allegations have been contested and we have yet to see what final verdict the Leveson Inquiry or the courts take of them (though see this excellent blog post from Greg Callus). However, the evidence is more than passing gossip and, if true, means that for years not only was RIPA being broken but the auditing to check that RIPA was being complied with failed to catch the problem. In other words, if true the allegations mean the Interception of Communications Commissioner and the system he presided over would have failed, badly and for a period of time measured in years.

Yet what does the latest annual report from the Commissioner, published well after the allegations were aired, say about this? Nothing. Not even a reference to waiting to see the outcome of court cases, let alone any preliminary investigations.

What is more, there has been other hints of possible serial breaking of RIPA for several years previously. The Information Commissioner’s seminal report in 2006 What Price Privacy blew the whistle on large-scale law breaking by the British media. Its implication is that the communications data journalists were illegally obtaining was coming direct from phone companies without abuse of RIPA procedures involved. However, it is not clear or explicit on this point so a good, pro-active regulator would have been on the ball to check that was the case. Instead, the reports are silent.

There was a chance again in 2008 with Nick Davies’s Flat Earth News, the other classic revelatory publication in this area. It too does not directly finger abuse of RIPA but it gives some strong clues that RIPA abuse may have been a widespread part of the culture of British journalism. He wrote, for example, that “As one Mail veteran put it to me: ‘If the Mail go for you, they get … every call from your phone and mobile.’” But what did the regulator do in response? Check out if RIPA was involved? Alas no. Once more, his annual reports are silent.

Seven reasons are six more than necessary. But here is an eighth, found in the Interception of Communications Commissioner’s response to the recent government consultation on the Justice and Security Green Paper:

The auditing role of the Interceptions Commissioner is clearly set out in the statute. It has clear boundaries, and seems to work well in practice. I see no compelling reason to change the nature of the role or the boundaries.

To repeatedly fail is one thing; to fail to see you’ve failed is even worse.