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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To beat the Trump hype, we need a return to old-fashioned political virtues

If we want to resist the Trumpification of politics, what we need is restraint, duty and incorruptibility.

After the 1992 US presidential election, Alistair Cooke’s celebrated BBC radio series Letter from America struck a poignant note. Cooke described Bill Clinton’s worn jeans and checked wool shirt, contrasting them with George H W Bush’s buttoned-up Wasp manners and buttoned-down Ivy League shirts. Clinton’s style, Cooke argued, was a rebuke to a tired social and political establishment. His casualness was the new America.

Cooke, then 83, was honest enough to admit unease about this departure from the old, patrician modes and manners. “Along with the passing of George Bush,” he said, “we shall see, I fear, the passing of the blue blazer.” Cooke seemed right at the time. But don’t write off the blue blazer just yet. As ruling elites change, so does the appropriate counterpoint. To topple Bush’s stuffy golf club elites, Clinton picked up his saxophone, took off his tie and felt everyone’s pain. And now? The subtext of these turbulent months (the inevitable second question, prompted by “How do you beat Donald Trump?”) is: “What should ­tomorrow’s leaders, the leaders we crave, look and sound like?”

My conjecture is that, to beat Trump and his type – bling, shiny suits, dodgy deals – we should push towards centre stage an underestimated set of political virtues: restraint, duty and incorruptibility. If it weren’t for the gender associations, I would be tempted to call this quality gentlemanliness. Aside from personal virtue – signally lacking in the Clinton camp – how might decency inform public debate as it comes under attack from maverick showmen trained in the media circus? How can the middle ground regain its confidence?

First, level with the public. Maybe liberalism hasn’t failed so much as its messaging has failed. Instead of smashing the electorate over the head with the idea that everything is just great, make the case that not everything can be for the best in all possible worlds. As populists reach for empty slogans, a new space has opened up. Accept and exploit those asymmetries: more people are ready to hear uncomfortable truths than politicians imagine.

Kingsley Amis once argued that a writer’s voice should stay close to his speaking voice: not the same, but close. Adapting that idea, if politicians stayed closer in public debate to the truths that they articulate in casual conversation – some things are impossible; almost every policy creates a losing as well as a winning side; there really isn’t any money – they would be surprised how many people are ready to hear that not all problems can be evaporated into thin air. Stray too far from awkward truths and elections become about simple lies v tricksy lies.

Second, centrists do more harm than good when they rush to categorise dissenting opinion as not only wrong, but unacceptable. “Any suggestion that liberal values are not humanly universal,” as John Gray wrote in a recent NS essay, “will provoke spasms of righteous indignation.” Instead, we need to be more tolerant in our tolerance.

Third, stop pretending that everything desirable can be shoehorned into the “progressive” agenda. “I really care passionately about persevering with the common-sense middle ground and doing it quite well” is a problematic political sales pitch, but not for the reasons that are usually given. The gravest difficulty may come at the beginning, with the faux passion, rather than with the substance – public service and competence – underneath.

It is revealing that those closest to David Cameron expended so much energy trying to persuade us that he was not an updated version of Harold Macmillan. That is why the gay marriage reforms, though admirable, were accorded too much significance. Ah, Cameron was a natural crusader! But he paid a price for dressing up as a “radical” when greater challenges arrived. It weakened some of his strongest cards – calmness, perspective, proportion – just as politics was coarsening. Aren’t Tories supposed to understand the virtues of yesterday? In other words, as an electoral strategy to beat Trump (or Nigel Farage), I’d put up a Macmillan type over a Clinton type every time.

Fourth, cut ties with “messaging experts”. It’s a fraud. They teach that everything must be asserted with powerful conviction. Yet ideas unworthy of powerful conviction are best left shorn of them. The electorate has endured a communications version of crying wolf. As a result of the messaging game, when something genuinely important crops up, it sounds simply like the same old shtick.

Fifth, ditch the bogus quantification. Few things signal untrustworthiness more reliably than fake precision. Something shifted in me when George Osborne argued that Brexit would leave households £4,300 worse off. What, no decimal point? Voters understand uncertainty better than politicians imagine. Precise quantification used to sound professional. Now it sounds suspicious.

Finally, think about tone. Conventional wisdom holds that the mainstream must fight the Trumpian revolution on its own terms: a simple solution, memorably expressed, a guiding vision for the country or the world. If anyone has a good one to hand, I’m all for it. But what if – after decades of ­sophisticated argument and counterargument, as politics has solved the easy problems while parking the difficult or insoluble ones – we have reached a state of such evolved equilibrium that no such easy answer can exist?

Pretending otherwise is no longer a point of difference. It takes you towards the lowest common denominator. As Trump has shown, that is well-occupied territory. Perhaps wooing the angry mob is not the solution. Instead, the admirable and successful politician of the future will have to win back the support of moderate, sensible but disillusioned voters. 

Ed Smith is a journalist and author, most recently of Luck. He is a former professional cricketer and played for both Middlesex and England.

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage