‘Archaic’ official secrets laws unfit for digital age

Legislation drafted to stop Edwardian secret agents lurking around dockyards or purloining papers from ambassadors’ desks is still the basis of protecting official data in the Wikileaks era, according to the Law Commission. In a report commissioned by the Cabinet Office on the protection of official data, the law reform body describes the body of law protecting data as ‘irrational, dispersed and lacking in uniformity’.

The Official Secrets Act 1911, passed with only a single day’s parliamentary scrutiny ‘still provides the principal legal protection in the UK against espionage, despite the fact it was enacted in the run up to the First World War’, the commission says. It proposes that the act, and successor measures passed in 1920 and 1939, be repealed and replaced with a single espionage act.

It also suggests that the 1989 Official Secrets Act, which replaced the notorious “catch all” section 2 of the 1911 law, be repealed.

According to the paper, the legislation’s archaic language, referring to media such as ‘seals’ and ‘stamps’ does not reflect how information is stored in the digital era. Its focus on military sites and bases bears little relation to modern concepts of the critical national infrastructure.

Technological advances have increased the ability of government to deal with large amounts of information, which has had a significant impact upon the relationship between citizens and government. In the modern era, sites that store sensitive information require just as much protection as sites that store ‘munitions of war’.

Reform is particularly urgent in light of the Digital Economy Bill, which aims to create a ‘gateway’ for the sharing of citizens’ personal data by public bodies. The commission says the proposals in measure, which is this week in committee stage in the House of Lords ‘do not streamline the legislative landscape, but rather add to it’.

At the moment, ‘numerous offence’; criminalise the unauthorised disclosure of information: five disclosure offences relate specifically to nuclear energy, for example. The laws differ widely in definitions of what constitutes personal information and whether there is a public interest defence for leaks.

A particular concern is the ease with which ‘individuals can now disclose large quantities of personal information instantaneously, causing harm to millions of people’. The report echoes the information commissioner in calling for tougher sentences.

‘It is questionable whether a maximum sentence of even two years’ imprisonment could appropriately reflect the harm done by an intentional and large-scale disclosure of personal information, especially if it is done for financial gain,’ it says.

Law commissioner Professor David Ormerod QC said: ‘The Law Commission welcomed the opportunity to conduct this rigorous, independent review of the law around the protection of data, including the Official Secrets Acts. We have made a number of provisional conclusions as to how the legislation could be improved that we believe will enhance the protection that is currently afforded to official information.

‘We welcome views.’

The commission’s final report on the protection of official data project is expected this spring.

By Michael Cross (Courtesy of the Law Society Gazette)