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Session 1999-2000
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Standing Committee Debates
Regulation of Investigatory Powers Bill

Regulation of Investigatory Powers Bill

Standing Committee F

Tuesday 14 March 2000


[Mr. Edward O'Hara in the Chair]

Regulation of Investigatory Powers Bill

10.30 am

The Minister of State, Home Office (Mr. Charles Clarke): I beg to move,

    That, during proceedings on the Regulation of Investigatory Powers Bill, the Committee do meet on Tuesdays at half-past Ten o'clock and at half-past Four o'clock and on Thursdays at Nine o'clock and at half-past Two o'clock.

Mr. O'Hara, I shall begin by welcoming you and your colleague, Mrs Michie, to the Chair. I am delighted to be serving under your chairmanship and I look forward to taking part in a Committee that will reflect the great tradition of discussion in the House. The sittings motion proposes that we meet on Tuesdays and Thursdays, in the morning and afternoon.

Mr. Oliver Heald (North-East Hertfordshire): May I join in welcoming you and Mrs Michie to the Chair, Mr. O'Hara? I have sat in Committee under your chairmanship before and I know that you will keep us in good order, as will Mrs Michie.

The Minister has moved a sittings motion that has a familiar look to it. However, I should like to bring to the Committee's attention various points that may have a bearing on the timing and length of our sittings. The Opposition do not oppose the principle of the Bill, but, as my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) made clear on Second Reading, we wish to raise certain issues in Committee. Perhaps the Minister will give us an idea today as to his attitude to some of those issues, so that we may judge whether the sittings proposed in the motion are adequate. Our provisional view is that they will be.

May I start by asking the Minister whether he has given any further thought to clause 6? The Opposition made the point on Second Reading that the list of persons who may apply for an interception warrant is completely open ended, because subsection (2)(k) allows anyone to be given permission to make such an application by order. Will the Minister agree to the provision in the Bill of a comprehensive list of persons who may apply for interception warrants? Will he also agree to adding the Department of Social Security to the list, because it deals with some of the most serious cases of fraud? Benefit fraud is, by value, the most serious offence of all. Far more money is taken through benefit fraud than through burglary. We would welcome an early response from the Minister as to whether he will seriously examine that issue.

Clause 12 requires communications services providers to obtain an interception capability. The Minister could save the Committee some time if he were able to give us further information today relating to that provision. The Federation of the Electronics Industry has told me that it may be possible to provide an interception capability for the internet, but it does not know how to do so at present. A letter that I received from the federation outlines the problem well. Packet-switched traffic is the method by which internet traffic is sent; it is also described as internet protocol traffic. The letter states that

    Packet switched traffic is built on the concept of breaking up data into smaller ``packets'' and sending them independently to their destination. This makes the utilistation of networks much more efficient and is now regarded as the only practical way to send large amounts of data over busy networks. The Internet is built on this concept and uses IP for all traffic.

It goes on to point out this technology is entirely different from the old form—circuit switched network traffic:

    Since the data travels as packets, the interceptor has to be able to intercept only those packets relevant to his investigation. Secondly, and more importantly, once the traffic has got past the entry point to the network, the packets can travel along more than one route and therefore it may be impossible to intecept the whole ``conversation'' or message.

    The current state of the technology is such that some, and possibly all, manufacturers and suppliers of Internet routers and switches do not currently have the technical capability to intercept individual IP traffic streams within the Internet.

    Individual traffic streams would need to be intercepted at the point of initiation The costs involved in adding special capabilities that are not required for their normal operation, and the provision of contracted services, to all edge routers is likely to have a major financial impact on the Internet community at large and Ebusiness in particular.

In a letter to The Times, today, Tom Wills-Sandford, the federation's director of information and communications technology, says:

    Whatever the eventual solutions might be, added cost and complexity are certainties. That must threaten the UK's ambition to be the best place in the world to conduct electronic business, for the one abiding truth of the internet is that electronic business will go where it is easiest to operate.

BT, another respectable source, makes the same point. It says:

    The mechanism for deciding what is a ``reasonable intercept capability'' will be a key factor in ensuring the successful implementation of the Bill and avoiding putting the UK at a commercial disadvantage to the rest of the world.

It says that at present that mechanism is subject to secondary legislation.

Can the Minister give us any information to show that it is technically feasible to intercept internet communications? If not, are we being asked to give him a blank cheque? Has he set experts to work to explore the options on the costs? If so, who are they and when will they report? If they are to report during the passage of the Bill, will he undertake to let us see the report? How does he intend to consult those affected by the technical obligations and steps referred to in clause 12? I have grave reservations about agreeing to impose those obligations on communications service providers, when we do not even know whether it will be technically possible to do so or what the cost will be.

The Minister makes the position worse by taking a power to make regulations on the obligations, and to do so under the negative procedure. The chance that the obligations will ever be debated as secondary legislation is tiny. We all know that, for every 2,000 regulations that go through the House on the negative procedure, only a couple of dozen are debated. Can the Minister give us any help on that? Another problem is that the Minister has not provided that clause 12 will be commenced with only when the science and the costs are known.

Governments always say, ``You can trust us.'' [ Interruption.] The Minister says that perhaps he will not say that, but he will no doubt say that, in this area, the Government have not previously imposed undue burdens on business. These powers would enable them to do so. If we are to know exactly how much time is needed for our sittings, we must know the facts at an early stage. The Minister will have seen amendments Nos. 18 and 19, which suggest that a technical approval board should review the requirements before they are placed on individual community services providers. I should be interested to know his view.

On Second Reading the costs of clause 12 on business were raised. If the Minister can give us more information on costs before we debate clause 13, that will save considerable time. I would be grateful if the Minister could provide a progress report on the costs for business before we debate clause 13.

We also have concerns about clause 21, which relates to a wide category of people who may be designated to request communications data, logs of traffic and so on. As hon. Members have said, software is available that performs data lining. Given sufficient data, the user can delve into all aspects of a person's life. Friendship tree software can uncover all a person's contacts and communications, which is an opportunity for great invasions of privacy. Will the Minister consider limiting the number of people, and holders of offices, who can request communications data? Will there be a mechanism to restrict such an operation to the most serious cases? Alternatively, is it envisaged that a local authority chasing council tax arrears could obtain massive quantities of communications data and pry into every aspect of a person's life, simply to recover a small sum of money?

There is a technical concern about the clause. Currently, the technology necessary to recover the data requested may not be available to all providers. Will the Minister provide information on that? What is the state of the science? Will he explain what the costs are, and his approach to contributing to them? That might save the Committee time.

On clauses 46 to 49, do the Government intend to table amendments to meet the points made in relation to the burden of proof? An individual is required to prove that he has an innocent explanation for not having his encryption key or not knowing where it is. It was established on Second Reading that some people genuinely lose or discard their keys, for perfectly sound reasons. Should the prosecution not prove default, instead of the defendant having to prove innocence?

Criminals might choose to accept the risk of prosecution under clause 49, instead of revealing incriminatory information of serious wrongdoing. Will the Minister consider what the new clause suggests in terms of allowing evidence of prior criminal wrongdoing, or other evidence found at the scene, to be introduced to highlight the intention of a criminal without damaging the position of an innocent individual? Does he have further thoughts on the defence of due diligence, which is contained in the new clause? Can the Minister save the Committee time by telling us his conclusions, or his latest thinking, on that set of clauses?

On the issue of unifying the commissioners and providing them with investigatory staff, does the Minister have further thoughts? Is he aware that the lastest technology allows a million million bits per second to flow through a glass fibre optic cable? That means huge quantites of information every second, and 100 Million e-mail communications every day. Some say that the age of interception is over, and crime fighters of the future will have to rely on sophisticated surveillance equipment. If that is the Government's view, and if their measures are for reasons of propriety rather than crime fighting, should they not admit it now? An interception structure could be costly for industry, and might result in the excellent technology of split-packet transmission being ruined. If it is necessary to channel those communications through small gateways, the entire benefit of the efficiency of internet traffic could be lost.

10.45 am

Finally, civil liberties and human rights issues were raised on Second Reading, such as the breadth of the powers and the judicial or non-judicial nature of the person who should make the decision on whether interception or encryption requests are to be made. Has the Minister had an opportunity to consider the amendments that we have tabled and the thoughts expressed on Second Reading? Can he give us any clue as to his thinking on those issues, which might save us time?

The Opposition agree with the principle of the Bill, and the sittings motion appears to be of the normal kind. However, the Minister would assist the Committee's consideration of the motion if he answered some of my questions—especially on clause 12, which is causing great concern to communications services providers.


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