Two police forces used lawful surveillance powers to spy on journalists' confidential sources without getting a judge's approval, according to the Interception of Communications Commissioner's Office (IOCCO) latest report.

The 52 page report (PDF) reveals the negligible effect of the Data Retention and Investigatory Powers Act (DRIPA) on the authorities' snooping activities.

IOCCO inspectors discovered two incidents in which the rozzers got their mitts on communications data (also known as metadata) to identify the interactions between journalists and their sources without obtaining judicial approval.

Approval is required under the Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice), which was revised in March this year to explicitly force police employees to get a judge's permission to hoover up people's metadata.

Sir Anthony stated that, in his opinion, "the policy intention [...] in circumstances where public authorities are seeking to determine journalistic sources [is that] judicial authorisation must be obtained."

He continued:

This will, according to the Minister, include when police are seeking to confirm or corroborate other evidence of the identity of a journalist’s source.

In the first case that IOCCO identified, the police used their RIPA powers to acquire the communications data of a journalist and their source, as part of an investigation relating to allegations of perverting the course of justice in the midst of an ongoing criminal trial.

While the trial judge was aware of the police force opening a criminal investigation into the journalist's activities, the force did not seek judicial permission as the code requires.

Whistleblower witchhunting

The second case suggests the police were enforcing their own omerta on speaking freely to the public, however, when they targeted a source within the police force – as well as a former police employee of the force who was suspected of acting as an intermediary.

The alleged criminal offences that were being investigated are listed under the Data Protection Act, which allows a public interest defence, and the Computer Misuse Act, which has been criticised for not allowing such a defence.

Internal disciplinary action towards whistleblowers has been a long-standing public concern. While the IOCCO report does not state the cause behind the claim aside from it "relating to the passing of information acquired and retained by the police", the offences suggested are typical of whistleblowing rather than illicit activities between the police and the press.

The report is the first half-yearly report from IOCCO, as required under section 6 of DRIPA, and will be Sir Anthony May's last, as he is to stand down as commissioner at the end of this month. ®