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Viscount Goschen: Will the Minister therefore confirm that he is confident that, for example, an e-mail system based in interactive TV and using TV signals would be counted as a telecommunication system rather than anything else?
Lord Bach: I should be far from confident in agreeing that, as the noble Viscount knew well when he posed the question. However, it is such an interesting question that I should like some time to consider it and will let him know whether I have the confidence that he requires me to have.
Lord Lucas: I hope that we shall persuade the Government to do that in due course. It will not have escaped the Minister's notice that interactive TV also involves signals broadcast for general reception, but intended to be received by only one person.
In this area, I accept what the noble Lord says is the Government's opinion, but I draw his attention to the many pieces of legislation in which the opposite view has been taken. I hope that he will give that some consideration. We have heard of "general purposes", "principal purpose" and many similar phrases in many pieces of legislation. If they have been unnecessary, I do not know why we have passed them. Therefore, I urge the noble Lord to take further advice, but in the mean time beg leave to withdraw the amendment.
What I am really after is an explanation of why this particular set of definitions has been chosen. It looks as though the Government are trying to close a loophole, to paper over a crack, in the basic definition in which my Amendment No. 12 would result. As I cannot see what the crack is, I am disturbed that the
Lord Bassam of Brighton: I suspect that the noble Lord is seeking riddles within riddles, but I shall try to help him. Amendment No. 12 would extend the definition of "interception" to include any action which made a communication available to a third party in the course of its transmission, rather than simply the narrower list of actions contained in paragraphs (a), (b) and (c). I can understand that this more concise approach is at first sight attractive and has the advantage of simplicity. However, as with our extension of the tort of unlawful interception in Clause 1, the current wording reflects the care we have tried to take to avoid making innocent activity unlawful. Subsection (3) is another example of this. It ensures that the ordinary use of a radio receiver or television in a home is not made unlawful.
We are concerned that by extending the definition in the way the amendment proposes would catch a great deal of innocent activity. We do not want to do that. For example, I am advised that passing on any files sent to a computer to a third party would be made unlawful by virtue of subsection (7). In short, we are concerned that the offence of unlawful interception bites only where it should and we believe that the current wording achieves that aim and objective.
I suspect that Amendment No. 13 would have the reverse effect by trying to narrow the definition of interception to exclude the monitoring of transmissions made by wireless telegraphy. This limb of the definition is necessary to ensure that interception of mobile communications between two microwave dishes and of point-to-point radio communications is caught. We are obliged by the European Telecommunications Data Protection Directive to prohibit that.
Lord Cope of Berkeley: It seemed to me that the Minister said that if a file were received by me, for example, and I forwarded it to someone else, in being forwarded, the file would not be covered by the definition that he outlined. Having read the definition, I am not sure that I agree with that, but it is extremely complicated and I should not want to be cross-examined too closely on whether or not such cover is included.
I believe that if a file is forwarded by the communications system, it should be covered by the provision as much as one that is received. After all, it is a perfectly normal occurrence and is, in any case, just as much a transmission through the telecommunications system. If forwarded files were not covered by this
Lord Lucas: I very much agree with what my noble friend has said. I find myself in the position of not having understood to any degree the answer given by the Minister. I do not want to go on at length about the amendment in front of the whole Committee. However, I should be grateful if the Minister would ensure that I receive a written example of what harm would accrue if Amendment No. 12 were passed; in other words, what undesirable effects would be caused by the passing of that amendment?
Viscount Astor: Before my noble friend sits down, is he awareI am sure that he isthat, as I understand it, coverage is needed on e-mail because an e-mail system which uses, for example, a terrestrial digital system sends only a general signal that says, "You have an e-mail". However, collection of that e-mail by the recipient is carried out through a dial-up process within a box. Therefore, subsection (2)(b) must cover not only the transmission of that broadcast to the individual, but presumably it must cover also, either via a cable or a telephone, the link to collect it. Therefore, my noble friend must consider how that fits in with the point that he makes.
Lord Bassam of Brighton: I am not sure how much more helpful I can be in relation to this matter. There are many clever pieces of elucidation bouncing around the Chamber. I shall pick up the point made by the noble Lord, Lord Lucas, although I believe that I had made it fairly plain. In phrasing the legislation, we must be terribly careful that we do not catch everything when, in fact, we want to catch something more precise. I believe that that is what we are trying to achieve in the drafting of this particular part of the Bill. I take the point that has been made by the noble Lord. If we are able to provide further information which will be of help and will perhaps persuade him that he does not need to return to this particular group of amendments, then, of course, we shall try, as ever, to be helpful.
As we understand it, Amendment No. 15 would, crucially, remove the words "and only if" from line 20. The words are used to make it clear to the reader that he should look only to subsection (4) of Clause 2 in order to understand the meaning of the phrase "in the United Kingdom" in the context of the interception of a communication. Without that restriction, there is a danger that the reader may look elsewhere in addition to this subsection in order to understand the phrase. For example, the words "in the United Kingdom" appear alongside the words "whether wholly or partly" in the definition of a telecommunications system in line 2 of page 4. I believe that the draftsman has used a similar device at line 9 of page 16, where the reader is directed to Clause 14(4) alone for a definition of the phrase "the authorised purposes".
Amendment No. 16 would criminalise interception carried out in another country which had effect in the UK. The criminal law must be precise, and this test is imprecise. An important question is: where does the interception of a wireless communication have effect? It is almost impossible to answer that question, and interception currently is not prohibited by the Interception of Communications Act 1985; to do so would make a criminal of anyone anywhere in the world who undertook the interception of a communication in the United Kingdom. We have no evidence that it is necessary to extend the scope of the offence world-wide. Generally, criminal law is limited to the jurisdiction of this country.
Amendments Nos. 17 and 18 would extend the definition of interception "within the United Kingdom" to include any interception of any communication anywhere, provided that the interception was carried out in the United Kingdom. As drafted, the Bill follows the precedent set by the current interception Act, which outlaws only interception of communications within the United Kingdom. As I mentioned previously, in the context of private telecommunications systems, we are cautious
I have explained our view of the noble Lord's amendments. I hope that in putting our response, he will now feel able to withdraw Amendment No. 15.
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