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Lord Lucas: I am grateful for all the efforts by Members on the Benches opposite to clarify this question. I shall read Hansard with great interest. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 to 18 not moved.]

Lord Lucas moved Amendment No. 19:

The noble Lord said: Here I seek a short explanation from the Government as to why they want to use the concept "in the course of its transmission" rather than just "interception of a communication" full stop. I beg to move.

Lord Bassam of Brighton: Amendment No. 19 would extend the applicability of the communications data exemption in subsection (5) to all references in the Bill to "the interception of a communication". For example, the conduct authorised by Clause 3(1) (interception with the consent of both parties) and by Clause 3(3) (interception by a telecoms company for service provision purposes) would include interception of the content of the communication, but not of its address. Those subsections would no longer be effective for authorising interception in order to acquire communications data.

Such a change would be disastrous for public telecommunications operators seeking to trace the originator of abusive phone calls by examining the communications data associated with such calls. Their behaviour would be rendered unlawful. The acquisition of communications data would be

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unlawful under Clause 3(1) too, even if both parties to the communication had agreed that this should take place.

The phrase,

    "in the course of its transmission by means of a postal service or telecommunication system"

has been carefully chosen by parliamentary counsel to cover a particular set of circumstances. The course of transmission begins where a postal service or telecommunication system first begins to transmit a communication. In a telephone, the sound waves from the human voice first begin to be in the course of their transmission by means of a telecommunication when they are received by the microphone in the handset. They continue to be in the course of their transmission until they are emitted by the speaker.

Such phraseology ensures that one is not technically intercepting a communication if one is in the same room as someone using a telephone, and one happens to overhear what is being said. In the same way, listening to a voice from a speakerphone is not interception: the sound waves have left the telecommunication system on which they were transmitted, and are hence no longer technically in the course of their transmission. That is what we have in mind and why we have used that phraseology. I hope that that helps the noble Lord.

Lord Lucas: I thank the Minister for that extremely helpful explanation. I shall be able to look at the Bill in that context. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 20:

    Page 4, line 41, at end insert ("and where no use whatever is made of any other information which a person may need to have access to in order to obtain addresses and other data so comprised or attached").

The noble Lord said: This is one of the great nubs of the Bill as it is presently drafted; namely, the danger posed to all our civil liberties by giving government unfettered access to what they have smilingly called "communications data".

With so much of our life becoming electronic and with so much of that life consisting of movement from one address to another to obtain predetermined information, the picture of a person's life which can be built up with access to communications data goes way beyond anything which we have traditionally allowed people to obtain without a warrant. The point of the exemption here is to allow communications data to be obtained without a warrant.

The particular point which I am addressing in this amendment is that in order to obtain communications data, one very often has to obtain a great deal of other data too, particularly if one is trying to intercept a package-switch system. I am concerned that the freedom from the restrictions from this part of the Bill should not apply if there are not proper safeguards in place to make sure that that part of the information which is not communications data—that part of the information data which should properly fall within

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Part I—is safely handled by whoever is seeking to escape from the necessity for a warrant under this subsection of the Bill.

We shall doubtless return to many aspects of communications data. This is merely the opening shot in that war. But I hope that the Minister recognises the problem; namely, that if information is transmitted in "clear", we are allowing people to look at a great deal of information just in the course of gathering communications data which should be visible only with a warrant. If we are to allow such a process, proper safeguards must be in place. I beg to move.

Lord Cope of Berkeley: I rise only to agree with my noble friend. I emphasise the fact that one of the difficulties with the Bill is that it collects an enormous amount of information and is not targeted on the precise information which is required for the purpose of the police, the security service, the Customs and so on.

I accept entirely that that is in part because of the nature of the Internet and the way it works, particularly as regards such matters as package-switching and so on and the way that that works. It may be impossible to design a system which does not collect a lot of additional information. But that means that we should be even more careful about what happens to that additional information, what use is made of it and that it is properly protected. It is not information which is necessary for the main purpose of the Bill; that is, for catching criminals, terrorists and so on.

Lord Phillips of Sudbury: From these Benches, we associate ourselves with the general purport of the remarks made by the noble Lord, Lord Lucas, as I tried to indicate in relation to the earlier amendments which I moved.

We agree that this matter goes to the heart of one of the most worrying aspects of the Bill. My only concern about the amendment is whether it is back to front. We should prevent information reaching people who do not need it at all. But it will be interesting to hear the Minister's response.

Lord Bassam of Brighton: I suspect that we are fishing in the same pool and that we are not a million miles apart in terms of our intent. It requires us to think more generally across the legislation.

Amendment No. 20 would expressly prohibit the use of any information incidentally obtained in the course of identifying addresses and other data under subsection (5). In practice we believe that the current wording of the Bill already achieves that objective. I draw the attention of the Committee to subsection (5)(a) which states expressly that the conduct described must provide a person with only,

    "so much access to a communication as is necessary for the purpose of identifying addresses and other data so comprised or attached".

Let us say that a person is obliged, in the course of his duties, to programme his computer to scan through the content of a series of e-mail packets in order to

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isolate those which contain addressing information. In scanning through other packets, he has access parts of the communication other than those which contain addressing information. So far so good. This is clearly permitted by paragraph (b). However, let us imagine that he now decides to retain those other packets which he has scanned through, or worse, to read them. In doing so, he has taken more access—I think we would all agree—to the communication than the Bill entitled him, and subsection (5) does not provide a defence for his conduct.

Certainly we recognise and understand the issue. It has been raised by the noble Lord, Lord Phillips of Sudbury, in an earlier debate. But we think that the way in which the legislation is drafted captures the issue that noble Lords have, quite rightly, attempted to address in this amendment, and the comments made thereto. Therefore, we do not think that it provides for unfettered access. It certainly closes off any line of defence. I hope that the noble Lord is reassured by that. I look forward to listening to his comments.

Lord Lucas: It seems to me that we are getting into a technical and legal definition of "access" here, which is not something to which I pretend to have immediate access, or to the arguments for or against. If the status is, as the noble Lord has expressed it—that making use of data to which you have access is actually further access rather than something separate—the Minister's argument stands and I am satisfied. Between now and Report stage I shall consider whether I really believe that to be the case. Meanwhile I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

Lord Lucas moved Amendment No. 21:

    Page 4, line 41, at end insert ("or

( ) any conduct in relation to anything which has been delivered, without any deliberate intent by any person, to a final destination other than a final destination intended by the sender").

The noble Lord said: It is unclear to me whether under the exceptions we are allowing the innocent third party, or someone to whom a communication has been delivered in error, to deal with the matter in a way which is convenient and sensible to them without incurring the risk of liability. If a letter or fax ends up in the wrong place, one may well wish to read it to discover to whom it should be sent back. I should like to be assured that that sort of conduct in relation to a communication is not caught by the Bill. I beg to move.

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