LONDON (Press Gazette/Pacific Media Watch): New Zealand investigative journalist Nicky Hager was working in Auckland when the police raided his Wellington home.
His daughter, who was alone in the house, was forced to dress in front of a female police officer, while five detectives began searching through her private letters, photograph album, her clothes drawers, and computer.
Over the course of 11 hours, they photographed documents, seized computers, phones and memory sticks as they scoured the house in search of clues to the identity of a confidential source behind one of the biggest political scandals in New Zealand.
Hager still feels bad that he was away that day. “They had some ludicrous theory perhaps that my daughter had a memory stick hidden and she would flush it down the toilet. It was just so unlikely,” he told Press Gazette.
Prime minister John Key implicated in dirty tricks
Eight weeks earlier, in the run up to the general election in September 2014, Hager, New Zealand’s best known investigative journalist, had published a book, Dirty Politics, that rocked the political establishment.
It revealed that the prime minister John Key and his officials were secretly colluding with bloggers in a huge dirty tricks programme, smearing and discrediting political opponents and critics of the governing National Party.
The book provoked a furore that dominated the news for weeks and led to the resignation of the prime minister’s longest serving official and the justice minister.
Dirty Politics was particularly controversial, because Hager had made use of a cache of incriminating emails and messages obtained by a hacker, known as Rawshark, who had broken into the computer systems of a notorious right wing “attack blogger”.
Rawshark had intended to release the documents on the internet, but the hacker agreed to let Hager use the documents to write a book exposing political dirty tricks, in return for a promise of confidentiality.
Hager knew that the source had committed a crime, but his lawyer advised that if a case came to court, he would win eventually if the public interest were strong enough. Hager was confident that it was.
However, experience has shown that every source who approaches a journalist, is likely to be in breach of some law. That might be breaking the Official Secrets Act, or a confidentiality agreement with their employers.
“I have had many dozens of important and deep confidential sources in my life and in most of those cases, the vast majority, the person concerned has broken the law when they're getting the information.”
Hager took an early decision to be up-front in his book and press interviews; that his revelations relied on hacked information, and that he had promised his source confidentiality. He made it clear that there was nothing in his house that could link him to his source.
“I had secured everything, I removed everything from the house,” he said. “Because I knew it was incredibly controversial.”
Sensitive documents seized
But there were other materials in the house, including documents from Edward Snowden, that worried Hager, when the police arrived.
“I had all kinds of printed-out materials around the house where I was piecing together different stories about surveillance in the Pacific region. So, in my mind, I imagined the police going through all that as well. It was exactly what you don't want to happen,” he said.
Hager claimed journalistic privilege in a phone call to the detective in charge of the investigation. The police had a plan in place for that eventuality - seize everything, seal it, and let the court decide its relevance to the investigation.
It later emerged that the investigators had failed to play by the rules and had attempted – without success - to access confidential internet accounts and cloud-storage services used by Hager’s past sources, after finding details written down on papers in the house.
Hager is in no doubt that the raid was politically motivated. “I don't think we will ever find any evidence of it. But I think there is hardly anyone in New Zealand who doesn't think this was politically pushed,” he said.
The raid provoked a wave of public outrage in New Zealand. One member of the public organised a crowd-funding campaign, which raised tens of thousands of dollars to help Hager fight the case in court, while other funds poured in from the Freedom of the Press Foundation in the US.
“It was an incredibly generous joint effort by all these different people to make sure this case would happen. A case like this is a big one for a country. It is a very important case, they don't come along very often,” he said.
In the aftermath of the raid, Hager found his existing sources had become more jumpy and new sources were more wary.
“Of course there were people saying to me, ‘was my stuff sitting around your house? Do you think they'll find out about me?’”
For Hager, the police actions were symptomatic of a growing intolerance from governments worldwide towards whistleblowers and a tendency to attack and criminalise legitimate media activity.
At the same time, government surveillance capabilities have expanded to a frightening level of intrusiveness, and police forces are using surveillance powers to hunt for journalists’ sources.
“Journalists themselves are scared. Whistleblowers are fearful, partly because they don't understand properly what's possible and what's not, what's realistic and what's not,” said Hager.
Protecting sources from state snooping
Hager refuses to work with any source with political motives. Even if the information is true, journalists can become contaminated by the timing and motivations of any source with a political agenda.
“When you're doing stuff where reputations are at stake and huge issues of accountability going on, where major clashes of right and wrong happen, we have to be super scrupulous,” he said.
After over 20 years at the coalface of investigative journalism, Hager prefers to take a low-tech approach to protecting confidential sources, and that means face-to-face meetings, rather than phone calls.
“If you're meeting a source, you don't ring them, you don't text them, you don't email them and you don't take your phone. That's pretty simple,” he said. “If you contact the source by phone, you're a bloody idiot these days.”
There are some things, he said, that should simply never be written down, and any journalist working on sensitive stories should have encryption on their computer. “Its not James Bond stuff anymore.”
“The final thing I do is, for some stories, but never with a confidential source, I use encrypted email. I wouldn't use encrypted email with a source because you still get an email data linking you and that person's email address.”
Police fight disclosure
Hager’s legal team filed an application for a judicial review in October 2014.
The police fought a rear-guard action to avoid disclosing details of their investigation, but Hager’s legal team were able to secure documents that showed the police had applied for the search warrant, before following up a large number of other leads that might have identified the source.
They also revealed an alarmingly cosy relationship between the police and the banking industry. Despite initial denials, Hager discovered that the police had obtained ten months of banking and credit card records, without having to produce a disclosure warrant.
“It really upset me, I didn't like it. Not because I was embarrassed by anything, but just the idea of some detectives sitting somewhere going through where I had coffee, who I generously gave money to because I cared about them. Just the details of my personal life,” he said.
Hager’s lawyers drew on case law from around the world to show that the search warrant had been issued without proper consideration of the chilling effect it would have on journalism, and the right to free expression.
They included the case fought by freelance journalist Robin Ackroyd in the UK against Ashworth Special Hospital, over the source of a story about the Moors murderer Ian Brady. And my own case in the European Court of Human Rights, Goodwin v UK, which set a new legal precedent for protection of sources across Europe.
Judge Denis Clifford found against the New Zealand police in a judgement in December, ruling that they had not been open with the courts about the potential chilling effects of the search warrant on journalism.
There was “a material failure to discharge the duty of candour” by police, and the police’s “reasonable belief” that they would discover information about the source was little more than “a hope,” the judge concluded.
Case 'utterly flawed'
“The police’s case was utterly flawed,” said Hager. “They believed they could turn up here, raid the house, turn it over and go through all my stuff and then, when most of the damage was done, after everyone knowing that they've been here, they could just tidy it up in court afterwards.”
Last week [ending 29 Jan], the police said they would not appeal the judgement. Its immediate impact is that courts will now have to consider the public interest in protecting journalistic sources seriously before they issue search warrants.
The case has almost certainly brought to an end the police’s ability to obtain bank details without a proper warrant, a practice that has probably affected thousands of people each year in New Zealand.
But more importantly for investigative journalism, the whole country has seen the police take on a controversial case and lose, said Hager. They are unlikely to be so cavalier again.
“They threw themselves into what they knew was going to be a controversial act, they put a lot resources into it and they had comprehensively been defeated on it,” he said.
The judgement, Hager believes, is likely to help journalists in other countries, as governments everywhere take an increasingly hostile approach to the media and whistleblowers.
“People have to take advantage of each other’s success and progress wherever it happens so that we push things back around the world,” he said.
Bill Goodwin is a British freelance journalist who won a landmark 1996 case against the united Kingdom government over breaching a journalist’s right to protect sources of information.
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 New Zealand Licence.