Terror in the Press: How the U.K.’S Threatened Criminalization of The Guardian Under The Terrorism Act 2000 Would Violate Article 10 of the European Convention on Human Rights

I. INTRODUCTIONIn November 2013, Liam Fox, a British parliamentarian and former United Kingdom ("U.K.") Defense Secretary, asked Alison Saunders, the Director of Public Prosecutions, to begin researching whether The Guardian newspaper could be prosecuted under the U.K.'s Terrorism Act 2000 ("TA 2000") for its publication of classified documents leaked by former National Security Agency ("N.S.A.") contractor Edward Snowden.1 Based on the theory that publication of Snowden's leaked documents undermined British national security, The Guardian could face prosecution for both sharing the documents with foreign journalists and failing to redact physical documents it sent to the New York Times.2The first threat of prosecution came only months after officials took David Miranda, husband of former Guardian employee Glenn Greenwald, into custody at London Heathrow Airport pursuant to schedule 7 of the TA 2000.3 On February 18, 2014, the U.K. High Court of Justice found the stop permissible under British law because Miranda acted on behalf of The Guardian as a courier of the N.S.A. documents Snowden leaked.4 Now, Scotland Yard, London's police force, has announced that it may prosecute The Guardian under section 58A of the TA 2000, a provision that prohibits communicating information about British intelligence agents.5This comment argues that if the U.K. functionally criminalizes forms of investigative journalism under the TA 2000, it will fail to uphold its obligations under article 10 of the European Convention on Human Rights ("ECHR"),6 codified within the U.K. Human Rights Act 1998 ("HRA").7 The U.K. must ensure it honors its international obligations outlined within the ECHR and HRA by clarifying that the TA 2000 will not be used to criminalize protected acts of journalism, investigative or otherwise.8Next, this comment establishes that The Guardian's activities fall within the definition of investigative journalism and that the TA 2000 contains an overbroad definition of terrorism.9 This comment further demonstrates that limiting The Guardian's freedom of expression as a journalistic entity is inappropriate and that the U.K. has a positive obligation to protect The Guardian's article 10 right to freedom of expression.10Finally, this comment recommends that the U.K. ensure its actions comply with the article 10 protections of freedom of expression required by both the ECHR and HRA. If the British government chooses to pursue criminal charges against The Guardian under the TA 2000, courts should enforce the U.K.'s obligations under the HRA by interpreting the TA 2000 in accordance with the U.K.'s ECHR obligations.11 Furthermore, the U.K. should strengthen the protections afforded to investigative journalists by narrowing the definition of terrorism in the TA 2000 and codifying the International Covenant on Civil and Political Rights ("ICCPR")12 into its domestic legislation, thus strengthening the State's commitment to protecting freedom of expression.13II. BACKGROUNDThe U.K.'s first terrorism legislation was a temporary fix aimed at preventing terrorism and combating violence in Northern Ireland in the 1970s.14 Recognizing the need for more permanent legislation, Parliament drafted the Terrorism Act 2000 in the aftermath of the 1997 Irish Republican Army ceasefire.15 Since the first stages of the drafting process and throughout its passage and implementation, the TA 2000's broad definition of terrorism has sparked concern and controversy.16This concern came to fruition when officials detained David Miranda, the husband of former Guardian journalist Glenn Greenwald, under schedule 7 of the TA 2000, which gives "examining officers" permission to detain a person "at a port or in the border area" if it is believed that his presence is connected to "entering or leaving Great Britain."17 Miranda, a Brazilian citizen, was traveling to Brazil with 58,000 highly classified documents obtained from former N. …