Regulation of Investigatory Powers Bill

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Mr. Ian Taylor: It might be useful if I again declare my interest as listed in the Register of Members' Interests: I advise several technology companies and I am a director of others. I make no secret of that-indeed, it is of benefit to me because every time I attend a meeting of these companies, I am educated. One specific company, which does not come under the Bill, but might be thought to, is speedtrap.com, an internet performance measurement company.

I draw attention to that because, as it grows, the industry looks for automatic tools to monitor performance, say, to discover the number of hits on a particular web page and the type of communications going on, or the reason why particular users are failing to complete transactions once they have gone on to a website. There is obviously a big commercial side to the internet. I am not enough of an expert to explain the many techniques that can be used to track performance on the net, but I am sure that the Minister, after some time with a cold towel round his head, will understand the significance of cookies and other things about which real internet nerds can wax lyrical for hours. The need for the internet industry to increase its commercial aspects juxtaposes the need to build trust and confidence between companies and people who use the net, and companies' need to monitor performance on the net.

I support my hon. Friend the Member for North-East Hertfordshire in his amendment-I do not know whether he said that it was a probing amendment. We want to find out exactly how the Minister interprets this part of the Bill, and it would be useful if he could make that clear.

Mr. Heald: My hon. Friend mentions cookies. My recollection is that cookies are software devices that are programmed into computers to provide marketing information to the company that sold that computer. If I am right, it might be worth hearing from the Minister whether such processes are covered by this subsection.

Mr. Taylor: I am grateful to my hon. Friend. As usual, he is quick to spot my core point, which is that monitoring will play an increasing role in this industry. How does one capture a remote customer? What is that remote customer's objective? Why did a transaction fail to take place when a person had already got to the web page? What are the attributes of a particular net user and the net system? Is the net system functioning properly, or is it impossible to complete a transaction because it has been badly prepared? All those questions are part of the analytical backdrop to what otherwise might appear to be a series of web pages or communications. To date, carrying out such analysis required the use of a series of super-computers, but increasingly it is being done by systems built into the network-monitoring systems that will eventually be built into the servers themselves.

I should be grateful for some clarification of a classic issue. The Minister rightly says that technology is moving apace and the Bill needs to be technologically neutral, but it would help if the Minister would clarify the Government's intentions.

3.45 pm

Mr. Clarke: This is an important debate. Amendments Nos. 7 to 9 deal with the monitoring of corporate and Government networks for reasons of business practice. The amendments would remove the requirement for such monitoring to be regulated in any way beyond that which was stated in the Bill. The intention behind the amendments is obviously to prevent excessive regulation of business-a reasonable aim, which I wholeheartedly support. However, interception is an intrusive tool that can never be used lightly.

Article 8 of the European convention on human rights lays down clear requirements that any interference with privacy must be in accordance with law, and necessary in a democratic society. In other words, the law must set out the circumstances in which interception may take place with a reasonable degree of specificity. The telecommunications data protection directive, which has to be implemented by October 2000, requires member states to prohibit listening, tapping, storage or other kinds of interceptional surveillance of communications by other than users without the consent of the users concerned, except when legally authorised.

This Bill is designed to achieve those objectives. The regulations that the Bill permits the Secretary of State to make will achieve that. Perhaps I should make it clear that I understand that the regulations will cover all the very reasonable points raised by the correspondence with the hon. Member for North-East Hertfordshire. The regulations will cover all communications, including e-mail, that are resourced, intercepted, listened to, stored and so on in the course of lawful business practice.

However, the key point is that it is necessary to consult industry properly to ensure that all likely situations are addressed and to protect the privacy of employees. The Halford case-which, as the hon. Gentleman knows, refers to a lawyer with rapier-like intelligence-stated that employers have a right to privacy in the workplace. Therefore there is a wide range of different interests. Later this year, we shall consult widely with all parties likely to be affected, with a view to making regulations that establish the circumstances in which interception may legitimately take place for business practice reasons, but that are not so detailed that they tie up businesses with red tape. We have already received positive reactions to this initiative from the industry, Oftel and the DTI.

An important consequence of the direction in which the Bill is moving will be to establish a much better dialogue between industry and the Home Office. The DTI is conducting consultation about this whole complicated range of issues. We at the Home Office have found that many of the organisations that have made detailed submissions of the type that the hon. Gentleman read out are happy to discuss these matters with us to ensure that everything is done correctly. That is why the regulations are not in front of us now, and why there is the time scale to which we have referred. It would be ridiculous to consult on the regulations without knowing what the Bill would contain. Equally, it would be ridiculous not to consult on the regulations but just to set them out without consultation. That is why the time scale is as I indicated.

Unfortunately, the amendments would put businesses in a difficult position because they would tend to remove certainty from the law. It would not be clear whether it was permissible to intercept employees' telephone calls in any circumstances, or to record a customer's incoming call for the purpose of market research or advertising. Does the hon. Gentleman agree that it is bad regulation that leaves business not knowing what the legal position is?

Where I think that the hon. Gentleman has justice on his side is in stating that the Committee is reasonable in wanting to look at what the regulations will be and how comprehensively the assurances that I have just given about our intention are needed. Our time scale is justifiably difficult. Sometimes Governments are slow in producing documents and can legitimately be criticised, but this is not one of those occasions. The timetable that we have established for the regulations is reasonable given the need to establish the law before we finally proceed, and the need to consult.

Later this year, the DTI will be consulting widely with all those who are likely to be affected by the regulations, with the intention of ensuring that all those people are satisfied that the regulations meet their needs. It is a specific goal of the policy to ensure that the points mentioned in the leter will be met. We also intend to limit any such interception to that which is carried out responsibly and with due regard to the privacy of those whose communications are monitored or recorded.

Mr. Heald: I am grateful to the Minister for giving way, as I sense that he is reaching his peroration. Article 5 of the directive says:

    any legally authorised recording of communications in the course of lawful business practice for the purpose of providing evidence of a commercial transaction or of any other business communication.

Is he satisfied that the sort of issues that we have been discussing are covered by that? The wording that now appears in subsection (2) is different from that used in the directive because it talks about

    Communications by means of which transactions are entered into in the course of that business

and then goes on

    or other communications relating to that business or taking place in the course of its being carried on.

Why should the wording be slightly different? Secondly, is the Minister satisfied that all the things that Mr. Baker was talking about can be covered within that general description which is in the data protection directive?

Mr. Clarke: I do feel satisfied about this because it is the intention of the consultation to ensure that the regulations meet the needs of the businesses concerned. A key need of the businesses concerned is to have legal certainty about where they stand, in all the fields that were addressed in that communication. We have no motive not to offer that certainty because, were we not to offer that certainty and were we to say that any particular type of communication was not to be included or whatever, that would simply perpetuate problems and difficulty. Therefore I can reassure the hon. Gentleman that, on that front, the various concerns will be met in the proper way.

With regard to the affirmative resolution procedure, I do not want to repeat what I said earlier about striking a balance on these matters. It is an issue that can entertain us for a good deal of time. The approach that we are taking is precisely to seek consensus with the industry. That is the interest that the hon. Gentleman was seeking to express in his intervention. We are seeking consensus with the industry and we are seeking to meet its points. The negative resolution procedure is a perfectly reasonable way of going about it. On that basis, Mrs Michie, I hope that the hon. Gentleman will consider withdrawing the amendment.

 
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