Standing Committee F
Thursday 16 March 2000
[Mrs Ray Michie in the Chair]
Meaning and location of ``interception'' etc.
Amendment proposed, [this day]: No. 48, in page 4, line 5, at end insert-
`( ) The Secretary of State may by order provide for a further definition of the words-``a substantial section of, the public in any one or more parts of the United Kingdom.''.'.-[Mr. Heald.]
Question again proposed, That the amendment be made.
Mr. Oliver Heald (North-East Hertfordshire): I welcome you to the Chair, Mrs Michie. We have been on Committees on which you have served as a member and more recently that you have chaired. I know that you will keep us in excellent order.
I was making the point that the Minister may well have a policy that the obligations and notices that are required under clause 12 should relate to the larger public systems and services, but there are no real safeguards to ensure that in clause 12. An order would be made under the negative procedure and few such orders are ever debated. Although the Minister may feel at this stage that it is right to impose the obligations only on the larger systems, over time criminals may begin to understand that and will use the loopholes in smaller systems to avoid their communications being intercepted.
It may be trite to say this, but crime fighting, detection and prevention are part of a moving tableau. We must be careful not to argue that we are not going to provide any protections now because we have good, sensible intentions. Later, the imperative of crime fighting, detection and prevention may require rather different approaches and the balance will have to be struck again. In an area like this, which involves fundamental human liberties, important issues relating to freedom of trade and regulation and the legitimate rights of crime fighters, striking that balance should be a matter for Parliament and not for the Minister by his own Executive action.
We are entitled to know how that balance is struck now, which is not very clear from the clause, and whether it may have to be struck again in future. The amendment would at least give the Minister the opportunity to do that. If the doubts and concerns expressed by the Internet Services Providers Association have any merit, the position may have to be redefined. The Minister must take the power suggested in the amendment or perhaps deal with the matter in some other way in the Bill. We are not satisfied with the answers.
The Minister of State, Home Office (Mr. Charles Clarke): May I, Mrs Michie, echo the welcome that the hon. Member for North-East Hertfordshire (Mr. Heald) gave you?
I said most of what I had to say immediately before we adjourned. I should like to re-emphasise two points. First, I accept that there is some force in the hon. Gentleman's argument. The situation will change over time. Therefore, we shall discuss the matter further with the internet service providers. I am prepared to consider whether this would be better dealt with under clause 12 and the order process that allows full discussion, or by the device suggested by the hon. Gentleman. On the basis of that assurance, I hope that he will withdraw the amendment.
Mr. Heald: That is a generous and sensible approach by the Minister. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Heald: I beg to move amendment No. 4, in page 4, line 39, after ``is'', insert ``reasonably''.
The amendment relates to clause 2(5), which restricts the definition of an interception by excluding interceptions that relate only to address or logging data.
The Committee has already decided that reckless interceptions without lawful authority will not come within the ambit of the offences in clause 1. That raises the importance of the amendment. Subsection (5), as drafted, allows interceptions of the content of communications not to be treated as interceptions. It states that
any conduct that takes place in relation only to so much of the communication as consists in any address or other data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;
is not to be considered an interception, nor is
any such conduct, in connection with conduct falling within paragraph (a).
In other words, attempting to find addresses and data
as gives a person who is neither the sender nor the intended recipient only so much
Interruption.] Yes. It is saying that such interceptions are not to be considered as true interceptions. The wording is very broad. It means that whenever the authorities want to uncover ``communications data'' and addresses, they can do it by serving a notice under clause 21 in such a way as to require the interception of communications, including their content, so that they can be sieved through in order by serving a notice under clause 21 in such a way as to require interceptions of communications, including their content, so that they can be sieved through in order to find addresses and logging data. Quite large amounts of communications could be read and it would not be an interception because it was necessary to find the addresses and the data within it. This means that quite disproportionate requests to view content in order to find data, although they would offend the structure of clauses 20 and 21, would not be covered by any offence. There would not be any criminal penalty if the content of these communications was read.
Interceptions of content in order to view ``data'' should be considered as interceptions if they are ``unreasonable'' and ``disproportionate''. They should be subject to the sort of victim protection that is in clause 1. There is also concern about the situation of users and internet services providers with the internet and the use of e-mail generally. If it is not to be treated as an interception of a communication-to intercept it and to read it and to find the data within it-quite substantial quantities of these sorts of interceptions could occur with no real way of tackling it from the criminal aspect.
This does leave open the possibility that, with advancing software and technology, quite large amounts of content could be sieved through in this way. The concern, as far as the user is concerned, is that he might well lose confidence in the system because he knows that so much sieving occurs. In addition, service providers may lose some of their credibility in terms of the nature and freedom of the internet as a result of that activity. In using their interception capability to find data, they could become overloaded and heavy costs might be involved. This is another sphere in which the drafting is quite broad. We should like to hear what the Minister has to say about the type of interception that he imagines is occurring in the search for data. Does he too envisage some of the risks that we think we have identified?
Mr. Charles Clarke: As the hon. Gentleman said, the amendment seeks to add the word ``reasonably'' to the requirement that where a person is exempted from the offence of interception because he intercepts a communication only for the purpose of obtaining communications data, the exemption should apply only to such access to the contents of the communication as are necessary to obtain the data. The hon. Gentleman explained that, and it is clear.
We assessed the amendment and considered the hon. Gentleman's overall proposal. He seeks to add the test that any access that a person is given to the content of the communication should be limited not only to what is necessary, but to what is resonable. I assume that the intention is to ensure that a person's access to the content of a communication is properly limited-that is what the hon. Gentleman told the Committee-and is only for the purpose of acquiring data about the communication: the addressee is the example that he gave. Although I sympathise with the intention of the amendment, I do not think that the word ``reasonably'' adds anything to the word ``necessary''. ``Necessary'' is a high test, as the hon. Gentleman, with his legal experience, knows. In a slightly different context, the court in Strasbourg described it as
not synonymous with indispensable, but not as flexible as such expressions admissible, ordinary, reasonable or desirable.
Adding the word ``reasonably'' to the definition that is already there would only create confusion. I accept that that is not the amendment's motive, but I am not convinced that it would clarify the meaning in the way that the hon. Gentleman hopes.
The other factor that ought to be addressed is one that the hon. Gentleman mentioned in an aside. He said that, in the past, telecommunication systems have tended to pass the content of a communication, and signalling data relating to it, down separate channels. However, in a growing number of modern systems such as those which use packet switching, to which the hon. Member for Esher and Walton (Mr. Taylor) referred this morning, there is no clear-cut distinction, as was conventionally the case, between the two forms of passage of data. Certain parts of a communications packet may contain either addressing data, or message content. Short of examining that part of the packet, there is no clear way of telling which type of data it contains. That presents a difficulty.
Mr. Ian Taylor (Esher and Walton): This is a very complex subject because, in a sense, each packet that is part of a message has its own address on it; it states where it is to go, giving the internet protocol number of the addressee. In that sense, there is an address on the outside of each packet. I am not clear about how one would distinguish between whether one was looking for that address-the ultimate destination of a series of packets which might be taking different routes through different parts of the network-or seeking the information within. An envelope is not a good analogy, but it is sufficient. Would I be looking at the address on the envelope or the contents within? In this instance there would be a multiplicity of envelopes.