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Thursday, 4 August 2011

Phone-hacking scandal reveals need to regulate private investigators

Not a day goes by without more details of the phone-hacking scandal being released in one way or another. There is no question in my mind that what has recently become public knowledge is simply the tip of the iceberg. We now know, as if there was ever any reasonable doubt, that there are more at fault that simply one “rogue reporter”. We also know that such practices were not limited to the News of the World or News International.

And, sadly, none of this is particularly surprising. But where will it end?

There has been a lot said in recent weeks about the ethics of journalism, the relationship between the media and the police and that between the Murdoch empire and Britain’s political elites. Of course it is right that these should be examined and it is also vital that we respond to the challenges. With this in mind, I would like to turn my attention to another aspect of the phone-hacking scandal that has received somewhat less attention: the role of private investigators. Without them newspapers would have been less-well positioned to carry out the kind of actions that have prompted such public outrage and if Britain is truly to learn from this experience and move forward it is vital not only to consider the ramifications for how our media, policing and political systems work but also whether a system of regulation for private investigators should be put in place.

In some respects Glenn Mulcaire was unlucky. We now can be quite sure he was not acting alone, and was more than likely operating under instructions. In some respects he was merely a convenient scapegoat; his conviction allowed for News International to claim he acted unilaterally and, ironically, helped cover up the scale of what were undeniably widespread practices. But there can now be few people who don’t accept that several such private investigators were acting on behalf of Britain’s leading newspapers – more than likely indulging in unethical and potentially illegal practices.

Outrage and anger have been expressed towards Murdoch himself, journalists and editors, key politicians and the police. And rightly so. Yet so little of this anger has focused on the role of private investigators (which, let’s be frank, were simply used by newspapers keen to exploit their willingness to do the ethically questionable). And yet this is a profession that was equally as culpable in phone-hacking as the media organisations they worked for – and far more guilty than either the police or politicians, even if the latter did little to challenge the conditions in which phone-hackers could so easily thrive.

It might be helpful to consider some facts about the UK private investigating. No-one knows how many private investigators there are, but upper estimates are around the 10,000 mark. The industry is completely unregulated. It is possible, and indeed perfectly common, to have convicted criminals operating as private investigators as there are no restrictions applying to the qualities and attributes of private investigators: as the Home Office admits, “anyone can undertake investigative activity regardless of skills, experience or criminality”. Private investigators are not covered by the remit of the Security Industry Authority and the Regulation of Investigatory Powers Act (which forbids interception of phone calls by anyone other than security services) is, as we have seen, almost impossible to implement in practice and usually ignored by private investigators.

This unregulated “profession” is, as you may have imagined, not a cogent, organised network but a myriad of individuals and companies ranging from larger organisations specialising in perfectly legal corporate work to smaller firms and individuals with little in the way of legal experience, ethical standards or principles. However, they all are able to access a widening pool of confidential personal data and are able to capitalise on the lucrative and generally illegal trade in confidential information. As we have seen, newspapers have been one driver in the market for such data which appears to be quite easily accessible for any determined private investigator. It seems that, in addition to the increasingly high-tech digital devices used by private eyes to spy on phones and computers, reasonably small gifts to police officers can persuade them to conduct searches for you.

This is not, however, the fault of the newspapers, which merely creates work for private investigators and ruthlessly exploits their lack of ethical scruples or their willingness to ignore the rule of law. Private investigators would exist without the appetites of tabloid newspapers for celebrity gossip and my concern with the conduct of this “profession” is not exclusively in relation to the phone-hacking scandal. Successive governments have talked about security and terrorist threats while failing to appreciate that having an unregulated group of people with access to practically limitless quantities of sensitive and confidential information – and who are willing to provide that information to any criminal, terrorist or violent ex-partner for the right price– has dangerous implications.

What is needed is the kind of action the Association of British Investigators has been calling for. The ABI is committed to “upholding professional values” and wants to “weed out the opportunists masquerading as investigators, who are prepared to operate outside the confines of the law for commercial gain”. It has repeatedly urged and pressurised governments to introduce a system of licensing for investigators, but such pleas have generally fallen on deaf ears. Clearly the ABI wish to clean up both the image and the nature of UK Private Investigating and are currently proposing the industry to self-regulate while “warn[ing] consumers of investigative services to be wary of using unregulated investigators who are not members of the ABI.” Fine sentiments they may be, but given that the ABI represents a tiny proportion of investigators it is likely that the majority will continue to operate outside the ABI’s envisioned standards.

Essentially, this is a matter for the government. Tighter regulation and a system of licensing, along the lines of the ABI’s proposals, would be a welcome start. But existing law must either be revisited or extended to ensure unscrupulous private investigators operate within its rule. Under current regulations, those penalties that exist are insufficiently strong to act as an effective deterrent and as we have seen certainly do not prevent wide scale abuse. I would go as far as to argue that regulation of private investigators is a matter of much greater urgency than increased regulation for media corporations, not least because it would have the scope to tackle the problem closer to the root.

Other professions with access to such sensitive confidential data are regulated to some degree. The government must now ensure that private investigators follow suit while moving to ensure that the more unsavoury practices are criminalised or at the very least effectively curbed.

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