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Lord Bassam of Brighton: I think that my explanation will make it plain that we do not seek to create a problem here where really there should not be a problem at all. We are confident that the Bill as drafted has the effect of providing the exemption from the interception offence where the communication is delivered to a wrong address. The definition of "interception" is limited to interception of a

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communication in the course of its transmission by certain means. To take one example, a letter which has been delivered through a letterbox and is lying on a doormat is no longer in the course of its transmission—it has, after all, arrived—because it is no longer being delivered by the public postal service into whose care it was entrusted. Should it have been misdelivered, readdressing it and sending it on could not possibly constitute an interception under the Bill.

Lord Lucas: I am grateful for that comfort. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 22:

    Page 4, line 41, at end insert—

("( ) In subsection (5) the reference to data comprised in or attached to a communication for the purposes of a telecommunication system by means of which it is being or may be transmitted includes a reference to any communication or part of a communication consisting of signals for the actuation of apparatus comprised in a telecommunication system by which they will be or may be received.").

The noble Lord said: Amendments Nos. 22 and 83 are designed to address a deficiency in the law highlighted by the recent House of Lords case of Morgans. They will ensure that there is legislative provision to allow the investigation and prosecution of dial-through fraud on telecommunications networks.

Dial-through fraud is the illegal accessing of outgoing telephone lines by using switch facilities to place calls at reduced or no cost to the caller. The primary motivation is to obtain telephone calls without having to pay. But there are further reasons: to avoid detection by call tracing; to facilitate computer hacking, which would otherwise cost a great deal in telephone charges; to exchange information with other protagonists by abusing voice mail; and to perpetrate other fraud-related action such as call-selling or premium rate service fraud.

The prosecution of dial-through fraud requires the evidence of dialled digits from a protagonist's telephone line. We think that monitoring those digits, both under the Interception of Communications Act and Part I of this Bill as currently drafted, amounts to interception. It follows therefore that the activity needed to monitor these digits should be warranted and will not be capable of evidential use by virtue of Clause 16. Clearly, it is in everyone's interests that such prosecutions can take place. The intention of these amendments is to ensure that they can.

It has also been brought to my attention that these amendments have caused some concern in relation to the Internet, with one interpretation being that they would allow the content of e-mail communications to be treated as communications data and therefore allow interception of e-mail communications to take place without the need for a warrant authorised by the Secretary of State. Although I do not agree that this is a valid interpretation of the wording, I want to place on the record that this is not the intention—I repeat the word "not"—of these amendments and that the Bill

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will require Secretary of State warranting for the interception of e-mail communications. I offer my assurance that the code of practice will clearly spell that out so that there can be no misunderstanding on that issue.

There is also the question of the point at which a visit to a website becomes a communication with the website. That is an interesting issue. Although I think that few would argue that the fact that I visited an airline website is the equivalent of me dialling the airline booking service and that the data should be treated in the same way, what I do when I am on the airline website is clearly more private and equates perhaps more closely to the content of the communication when I am through to the airline booking service. We think that this distinction is reflected in the amendment. It is clearly a difficult distinction in practice, and my officials are already in dialogue with industry representatives on that point to find a technical solution. This specific point will be addressed in the code of practice. I can offer that assurance to the Committee.

On Amendment No. 74, removing subsections (2) and (3) would leave both the investigating agency and the provider of communications data open to criminal or civil liability in respect of any actions they carried out under an authorisation or notice. The most obvious area in which actions may be taken would be under the Human Rights Act. But it is possible that, for instance, a customer could sue his communications service provider for breach of contract or breach of confidence if there was no cover provided by the Bill.

Regarding Amendment No. 75, I do not believe that adding the word "expressly" makes any material difference to this subsection. A person either is authorised or he is not. If he is not, any actions carried out by him under this section are not lawful, and it leaves him potentially liable under civil and criminal law, including actions under the Human Rights Act.

Although Amendment No. 77 would apply the definition of "communications data" to Part I in its entirety, rather than just this chapter, the term "communications data" is not used in Chapter I, so this amendment would have no effect.

I believe that the intention behind Amendments No. 78 and 80 is to restrict the types of data which may be collected under this chapter. I think that there are two important points to make here: first, the whole point of this chapter is to place on a clear statutory basis that which already occurs. The Data Protection Act already allows holders of communications data not restricted by any definition to supply it for certain purposes. Secondly, this Bill is not about making communication service providers start to collect data which they do not already have the capability of collecting. This is what Clause 21(7) is designed to achieve, and it was drafted in response primarily to industry concerns.

Amendment No. 79, as I understand it, would tighten the definition of communications data so that it could not indicate any of the content of the communication. But if a person phones an airline

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booking service, does that not indicate that in all likelihood the communication will be related to airline bookings? This amendment would mean that the telephone number of the airline booking service could not be treated as communications data and restrict the use of the data so tightly as to be effectively unworkable, which I am sure was not the intention of the amendment.

Amendment No. 82 seeks to restrict the third category of communications data (i.e. not addressing information or usage information) to data which serve to identify persons to whom the communication service is being provided. While this category of data may not in itself identify anyone, it may well provide an invaluable lead which would enable the person to be identified. This is necessary, in our view, because it is so easy for those who seek to evade the law to purchase communications services without giving a name, address or other contact details.

I trust that what I have said will help noble Lords who are moving other amendments and that, having heard my responses, they will feel able to withdraw their amendments and accept the Government amendments. I beg to move.

Lord Cope of Berkeley: First of all with regard to dial-through fraud, the noble Lord the Minister may recall that I mentioned this at Second Reading. It is important for this issue to be tackled, but at the same time I am not absolutely sure that it has been fully tackled in a satisfactory way by the Government amendments. The noble Lord himself said that the amendments in themselves have not proved enough to reassure some people who are concerned about this matter, but that the code of practice would go further. That may be so. We are not at the moment in a position to judge that because we have not seen the code of practice, but the Minister almost promised that we would see the code of practice before Report stage. I think that would be most helpful. The Minister nods "yes" from a seated position, and I take that as confirmation that we shall see the code of practice later and be able to return to the matter if we wish to.

There are two amendments in this group standing in my name. The first one, Amendment No. 77, concerns an extremely small point and is no way comparable to the government amendment. It attempts to extend, as the noble Lord said, the definition of communications data to make it apply to Chapter I as well as to Chapter II. The Minister seemed to be under the impression that the phrase "communications data" did not occur in Chapter I and therefore did not need to be defined. I did have a number of instances of it, but I have lost all but one of them for the moment! However, if the noble Lord will look on page 8 at line 30, he will see communications data referred to there. There are other examples, but I do not think the expression is defined elsewhere.

This whole definitions business is difficult, as has already been mentioned. With regard to Amendment No. 79, the Minister is entirely correct in suggesting that I would not wish to cause the difficult effects that he has mentioned. I shall therefore not press that

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amendment, and I am grateful to him for the explanation he has given. It will be necessary to make sure that the wording is satisfactory.

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