Watching the Detectives

September 9, 2010

There are really only three ways of getting information: look it up, ask someone or steal it. The third option is often referred to by euphemism; yet increasingly the grey areas that used to exist in this regard are gone, even if practitioners are finding that hard to handle.

The current News of the World scandal in the UK – over illegal efforts by journalists to break into the voicemails of public figures, and the failure of the police to investigate it – is a reminder of the reality and prevalence of information obtained by deception, and the problems around it.

Journalists, policemen, spies and investigators all know this, and all engage in all three methods to some extent. All know two dirty secrets: that the first two methods, legal and slightly dull, account for the vast majority of information that they get, despite the mystique surrounding their professions. They demand hard work and diligence. And: what remains, the covert acquisition of information by nefarious means, is far from glamorous, often illegal, unreliable, and not neccessarily worth the risk involved. Yet they often stick with old, trusted techniques, however lazy or dangerous or illegal. Sometimes, they can generate information no other method would, and sometimes that is worth the risk.

It isn’t always illegal to obtain all information by deception; it can’t be, as the statute couldn’t be drawn up that broadly. It is, however, illegal to deceive some people in some ways for some reasons (telling a bank official you are someone else, to get their bank statement or their money for example. But it varies widely and by country. It is hard to prove. And the exceptions are significant.

All four professions tend to believe that they are justified in taking information: the public good justifies it in their minds and indeed often in law. That seems to be one of the main issues with the NoW. It sees itself as a crusader for truth against elites, and so may well not have seen much wrong with cracking the voicemails of the rich and powerful.

Several things are wrong with this. Firstly, the relevant UK law – the Regulation of Investigatory Powers Act – includes no public good defence. Secondly, it is hard to see that all the stories that resulted from phone hacking are in the public good. Most are low gossip. And if you think that the judgement of an elitist, then consider: who judges the public good here?

Another defence: “stealing” is seen as somewhat relative. If I break in to your house and take a necklace, that’s stealing. If you leave your front door open and I pop in and take a look at your diary, is that stealing? If I don’t deprive you of the thing, and don’t break anything to get in? Am I stealing if I overhear your conversation? Find a letter you dropped? Read a document you forgot to delete on a public computer?

Cracking a voicemail involves accessing the system with the right number and knowing the PIN code. The message is still there, and using someone else’s PIN – well, is that illegal?

Yup. The statute is relatively clear. Read the law.

Indeed, much of what used to be routine in the investigative world is indeed now illegal. Getting bank account data and mobile phone bills is illegal, in most developed countries. People go to prison and pay fines. Bribing officials or policemen to get information is also mostly illegal. Getting hold of peoples’ rubbish and using what you find – letters, phone bills – is harder since people have got wise and shred their mail. This encourages people to use quick, cheap, reliable tricks. And they fall in love with these, since they have an air of mystique, secrecy, intrigue.

The world of private detectives, journalists, intelligence officers and so on has turned to electronic information because it’s easy, people are careless, the law isn’t always clear, it’s often hard to prove wrongdoing, and the other avenues are tough.

Each believes they have the right. They work together very closely and the best in each profession respects the others. And each tends to believe that what it does is in the public interest.

That is one of the critical points. What precisely is the public interest? Who defines it? Anyone? The Met? The NoW? The reader? The courts?

The reality of the NoW case is that the paper seems to have been very aggressive in using available techniques against all possible targets, with poor judgement about when and why. It had the resources, the editorial backing and the management space. In this case, however, this wasn’t jusitified from an editorial, legal, or risk management viewpoint and probably wouldn’t even have got them decent stories. Voicemail is a blunt instrument.

The activities of the paper’s investigative journalists are stories of legend: but no-one is talking about clipping the wings of legitimate inquiry. This was low-end stuff, not the undercover work of the paper’s star reporters.

Why wasn’t it thoroughly investigated? Because it would have been hard, because there would have been an attitude of “worse things happen in the jungle,” because none of those charged with investigating will have seen it as wholly their job, because some will have seen it as a victimless crime. The evidence and investigation (despite what the TV leads you to believe) will have been tough to piece together. Who accessed this voicemail? From where? How? And should the police let everyone know they might have been hacked? How would they know?

So – some will see this episode as a serious breach of the law by politically motivated people that felt they could act with impunity and worked in cahoots with the police. Others will regard it as an inevitable product of new challenges around electronic security and privacy. A third group will see it as journalism on the edge (for good or ill).

There is some of all of these, but in the end this was a professional failure at every level. This was poor investigative technique deployed to gather poor stories by lazy journalists who couldn’t be bothered to do real investigative work: develop sources, dig dirt, and get smart.

There’ll be more of this. Corporate, political, commercial interests will play happily with the people that do this work because they love it, and believe it right to expose the private lives of public figures. They always have done and they always will. We should make better laws and police them better, because the existing system doesn’t work. Meawhile. buy a shredder, don’t use email for difficult stuff, and don’t leave voicemails.

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