News Corp mobile ‘hack’ charges – analysing the law

With peripheral inquiries ongoing in to alleged conspiracy and media ethics, Tuesday’s announcement that Rebekah Brooks, Andy Coulson and six others will be charged for “phone hacking” shows the News Of The World furore will soon finally focus on the original criminal allegations.

The Crown Prosecution Service says eight people will be charged on 19 counts of  conspiring to intercept communications intended for 600 recipients. They are Brooks (ex News International CEO), Coulson (ex editor), Stuart Kuttner (ex managing editor), Glenn Mulcaire (private investigator), Greg Miskiw (ex news editor), Ian Edmondson (ex assistant editor), Neville Thurlbeck (chief reporter) and James Weatherup (assistant news editor).

All are former editorial staff, so the Murdochs, Les Hinton and Tom Crone are off the hook in this phase.

What was ‘phone hacking’?

And how does someone commit it? Legally, that could depend on a couple of interesting arguments, including whether the law is trumped by mobile networks’ own embarrassing part in the controversy…

The relevant law here is the UK’s Regulation of Investigatory Powers Act (RIPA), which provoked digital libertarians’ outrage when it was introduced in 2000 for allowing spying on citizens’ communications by police and intelligence agencies but not by others, like journalists.

RIPA outlaws “interception” of telecommunications systems. To be convicted of this “interception”, people facing charges would have to either had “monitored” their targets’ voicemails or modified their voicemail systems.

A decade ago, mobile networks left the voicemail door open when they issued only default access PINs to customers. For example, anyone could telephone a Vodafone customer and, upon a non-answer, could enter Vodafone’s default, network-wide PIN to gain access to the recipient’s mailbox. This is what journalists are accused of.

The networks had left the back door ajar – and no authority, whether regulatory nor any mobile industry body, ever told the networks to close it, though individual carriers have now stopped issuing default PINs.

Where does this security oversight leave a prosecution? If anyone entered the open door in the early 2000s, would that still break RIPA’s law on “interception”? A prosecutor may argue listening to voicemails whilst logged in to the mailbox could indeed constitute “monitoring”, that deleting any voicemails whilst there could indeed constitute “modification”.

On the other hand, to satisfy a rigid definition of “interception”, would eavesdroppers have had to listen to voicemails before their intended recipients ever did? If so, we could see some prosecutions succeed and others fail, depending on who dialled in first.

The wider impact

Although business executives besides Brooks are not being charged with actual phone hacking, News Corp, of course, is not exempt from collateral damage from the former journalists’ upcoming trials.

Having already shut News Of The World, the company is now splitting its news publishing and broadcast/movie assets. If completed before trials begin, the split could shield Fox from any further death spiral in which News Corp finds its papers.

Brooks was already amongst those facing a charge for conspiracy to pervert the course of justice, relating to an alleged cover-up of the “hacking” itself.