Why the hacking of NightJack matters

The <em>Times</em> finally admits that a blogger's email account was hacked.

The Times of London is regarded as a form of flagship. For a few it is still the "paper of record" for the United Kingdom. And for News International and perhaps for Rupert Murdoch, it shows that they were able to promote a different and more responsible form of journalism than that practiced at its tabloid sister papers, with their grubby phone hacking, private investigators, and intrusive reporting.

But yesterday there was an admission. The Times admitted that a former reporter used computer hacking as part of an investigation. And not only did the reporter hack into a person's private email account, he also told his managers he had done so. Faced with this, the Times published the story based on that investigation even though they were "unclear" as to the role of computer hacking in the reporter's investigation.

You would have thought that the managers would have wanted to know the exact scope of the unauthorised access used in this investigation before they published what was a significant story -- a story that severely infringed someone's privacy. But the Times yesterday told us the managers simply did not know.

The story was about "NightJack", a popular and extremely well-written blog about the reality of police life. It was written under the pseudonym of "Jack Night" and described the goings on in the fictional world of Smallville and Bigtown. No one who read the blog at the time knew where it was set; indeed, part of its power was that it could have been any urban conurbation, and Jack Night could have been any policeman. Even those hostile to the police in general could gain an understanding of the predicaments which police officers routinely faced in their duties.

And so on 22 April 2009 Jack Night won the first Orwell Prize for blogging, an award hitherto given only to journalists and for books. For a blog to win a major literary prize was noteworthy and, naturally, there was particular interest that the author was not known. A young reporter at the Times then decided to see if he could work out the identity of Jack Night.

Was this a valuable journalistic exercise? Should newspapers be devoting resources to exposing the authors of blogs and those using social media more generally? In some circumstances this sort of exposure would be appropriate. For example, at Jack of Kent over a hundred commenters together identified Johann Hari as using "David Rose" as an alias which was used in a systemic exercise over many years to dishonestly promote his own reputation and to maliciously smear those with whom he disagreed.

Was there any similar public interest in exposing Jack Night? There was certainly a public interest in maintaining his blogs written under anonymity: the posts were fascinating and thought-provoking.

The reporter at the time claimed that there were two ways in which public interest was engaged. First he claimed that it could be that the Orwell Prize was duped by a fabricated blogpost. However, this was not convincing, as the Orwell Prize had openly said it had conducted its own checks and was completely satisfied.

The other public interest claimed (in the reporter's witness statement) was that "a policeman was revealing information he had obtained in the course of his police work and was also offering detailed guidance on how to frustrate the attempts of the police, in breach of the police Code of Conduct." (One rather suspects that this articulation of the public interest was informed by legal advice.)

It is not clear if this actually was the case. There is no reason why police officers cannot discuss their work in public, as the legions of police officers now on Twitter show. Jack Night did once post a delightful piece where he advises anyone arrested to do a variety of things, which would actually not be very helpful at all ("show no respect to the legal system or anybody working in it", was one remarkable tip). Some of the posts did feature incidents drawn from real cases, but it was never possible to identify any real incident unless one knew what to look for in an elaborate news archival search.

In fact, there was no public interest in identifying the author of the NightJack blog. The author was not engaged in any exercise of dishonesty or malice, systemic or trivial.

There was instead a public interest in having insightful and carefully-crafted blogs like this. And there was also a public interest in the principle of anonymity and protecting sources. Jack Night was his own source, and one would have hoped journalists and editors at the Times would have valued the importance of protecting anonymity when it is a pre-condition of publishing information in the public interest.

However, the Times decided to out the author against his will. But how did they identify him? The reporter in question provided a witness statement of some 56 paragraphs and with 56 pages of exhibits which showed a brilliant piece of intellectual detective work. Bits of NightJack blogposts were compared with snippets from obscure Ju-Jitsu sites and the Facebook page of the blogger's brother in Houston, Texas. There is also reference to non-internet sources, including the name the blogger used on a list of ex-directory numbers. Everything which could be known about the blogger from any source seemed to have been found out.

So what role did the computer hacking play in this investigation? The Times said yesterday that the role was "unclear" (but also somehow confidently asserted the investigation was "a legitimate process of deduction based on sources and information publicly available on the internet").

Perhaps we will never know. The newspaper is refusing to confirm or deny whether it has retained the relevant records of the incident and their press officer told me today that she has been "advised that we are making no further comments on this matter".

What the Times did decide, however, was that there was no public interest in the computer hacking which occurred. Once it was known that there had been the unauthorised access of an email account there was a disciplinary exercise, and the journalist was given a formal warning. In making that punishment the newspaper decided that there had been no public interest in the hacking.

But what makes this entire incident especially problematic is that before publication the Times had to resist an injunction application by the blogger to retain his privacy. It is not clear whether managers at the Times knew about their reporter's computer hacking before or after the hearing. In any case, it certainly was not told to the Court.

In my opinion, this has two highly significant implications for the High Court case on the injunction. First, the blogger's barrister was forced to concede crucially that the application would proceed on the basis that there had been no breach of any confidentiality or privacy right in the investigation. Second, and even more importantly, the judge determined at paragraph 33 that the blogger had no reasonable expectation of privacy.

Would the Times still have won the case had the computer hacking been disclosed? This is possible, as the judge was persuaded that there was a strong public interest in identifying a blogging police officer. But we do not know. A breach of privacy by means of computer hacking is a serious matter, and it would certainly have been relied upon by the blogger's legal team had it been disclosed to them. It is a general principle of both law and common sense that wrongdoing is not rewarded.

It would appear that a decision must have been made by a senior manager at the Times not to tell the High Court and the defence about what was clearly a relevant and material matter to the injunction case. Even if the computer hacking was not known about on the date of the hearing of 4 June 2009 it was known by the date of the judgment of 17 June 2009, the day before the Times published its story.

So at some point before judgment was handed down the Times must have taken a decision not to disclose its knowledge about the computer hacking. It may well be that there was no strict legal duty to disclose that information -- such disclosure obligations can be technical in scope. But no sensible person would dispute that in a hearing of this kind that it really should have been made available to the judge and the applicant. There had been computer hacking in the investigation to uncover the blogger's identity, and the Times knew about it and said and did nothing about it.

And no one would ever have known had it not been for the Leveson inquiry. Even then, the Times played it down and it was left to others to make a connection. The newspaper's managers realised something wrong had happened but they never told or apologised to the blogger whose email account was hacked.

Overall, the hacking of NightJack matters not only because it tells us something about dark journalistic practices but that such practices are rarely willingly or openly acknowledged when they occur, even at flagship titles like the Times. Computer hacking was used, a person's privacy was invaded, a court was not told, but the Times published anyway.

 

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

 

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Tory right-wingers are furious about Big Ben – but it’s their time that’s running out

They could take both Corbyn and the present moment seriously. Instead, they are arguing about a clock.

Jeremy Corbyn, it is often said, wants to take Britain back to the 1970s.

The insult is halfway to an insight. It’s true that the Labour leader and his inner circle regard British economic policy since the late 1970s as an extended disaster that led to the election of Donald Trump and the vote to leave the European Union: a “failed experiment”, as Andrew Fisher, Corbyn’s influential policy chief, puts it in his 2014 book of the same name.

The Labour leader views the 1970s not as a blighted decade waiting for a saviour, but as a time when trade unions still had teeth, privatisation was not treated as a panacea and inequality was lower.

Theresa May doesn’t see the past four decades in quite the same light, but she does believe that the Brexit vote was, in part, the destabilising consequence of an economic settlement that has left too many people in Britain without a stake in society. This means, for now at least, an ideology that was until recently a consensus has no defenders at the top of either party.

May’s successor might conceivably be an unrepentant cheerleader for free markets and the Anglo-Saxon model of capitalism, but as things stand, whoever replaces May faces an uphill battle to be anything other than a brief pause before Corbyn takes over. Because of the sputtering British economy and the prospect of a severe downturn after Brexit – coupled with the Labour leader’s rising personal ratings – it is the opposition that has momentum on its side, in both senses of the word.

All of which might, you would expect, trigger panic among members of the Conservative right. Neoliberalism is their experiment, after all, the great legacy of their beloved Margaret Thatcher. Yet while there are a few ministers and backbenchers, particularly from the 2010 intake, who grasp the scale of the threat that Corbynism poses to their favoured form of capitalism, they are outnumbered by the unaware.

For the most part, the average Tory believes, in essence, that the 2017 election was a blip and that the same approach with a more persuasive centre-forward will restore the Conservative majority and put Corbyn back in his box next time round. There are some MPs who are angry that Nick Timothy, May’s former aide, has waltzed straight from the 2017 disaster to a column in the Daily Telegraph. That the column is titled “Ideas to Win” only adds to the rage. But most generally agree with his diagnosis that the party will do better at the next election than at the last, almost by default.

And it’s not that the Conservative right isn’t panicked by anything, as a result of some state of advanced Zen calm: many are exercised by the silence of Big Ben during its scheduled four years of repairs.

Yet you don’t even have to go as far back as 1970 for a period of silence from Elizabeth Tower. The bongs stopped ringing for planned maintenance in 2007 and for two years from 1983 to 1985, and the Great Clock stopped unexpectedly in 1976. What distinguishes this period of renovation from its predecessors is not its length but the hysteria it has generated, among both the right-wing press and the Conservative right. The Brexit Secretary, David Davis, described letting the bells go quiet as “mad”, while James Gray, a Conservative backbencher, went further, dubbing the repairs “bonkers”.

The reason why the bongs must be stilled is that they risk deafening and endangering the workers repairing the bell. Working around them would further extend the maintenance period, potentially silencing the clock for ever. The real divide isn’t between people who are happy for the bell to fall silent and those who want to keep it ringing, but between politicians who want to repair and preserve the bell and those who risk its future by squabbling over a four-year silence. There may well be “mad” behaviour on display, but it certainly isn’t coming from the repairmen.

The row is a microcosm of the wider battle over parliament’s renovation. The estate badly needs urgent repairs to make it fire-safe and vermin-free – in the past year, the authorities have had to spend in excess of £100,000 on pest control, with bed bugs the latest pest to make a home at Westminster. If it isn’t made safe, it could burn down.

The cheapest and most secure option for MPs is to decamp down the road to the Queen Elizabeth II Conference Centre, just a few minutes’ walk from parliament. But the current delay, facilitated by Theresa May, increases the cost of repairs. The Prime Minister has also weighed in on the row over Big Ben, telling reporters that it “cannot be right” for the bell to go quiet. Westminster’s traditionalists, largely drawn from the Conservative right, talk up the importance of preserving the institution but their foot-dragging endangers the institution they want to protect. As for May, her interventions in both cases speak to one of her biggest flaws: while she is not an idiot, she is altogether too willing to say idiotic things in order to pander to her party’s rightmost flank. That same deference to the Tory right caused her to shred or water down her attempts to rejig the British economic model, ceding that ground to Corbyn.

A Labour victory at the next election isn’t written in stone. The winds blowing in the opposition’s favour are all very much in the control of the government. The Conservatives could embark on a programme of extensive housebuilding, or step in to get wages growing again or to turn around Britain’s low productivity. Philip Hammond could use his next Budget to ease the cuts to public spending. They could, in short, either declare that the experiment hasn’t failed and vigorously defend it, or write off their old project and create another one. They could take both Corbyn and the present moment seriously. Instead, they are arguing about a clock, oblivious to the reality that their time is running out. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.

This article first appeared in the 24 August 2017 issue of the New Statesman, Sunni vs Shia