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Lord McNally: My Lords, I share the understanding the noble Lord expresses for the Minister's dilemma. I think that we all take the attitude that we would not have started from here--but here we are. There has been an element of the politics of the souk as the Bill has passed through your Lordships' House, with offers and counter offers. In the end I believe that what we are doing is to the credit of this House.

The Bill emerged from the Commons with concerns expressed by civil liberties groups and the industry. We hope that we are edging towards a better Bill. The purists may find fault with the Minister's attempts to define "communications data", but it is a definition that we can live with. It is moving in the right direction and in the right spirit. Perhaps by the end of our proceedings we shall have a Bill with which we are all satisfied. But that will be the case only if we continue in the spirit of listening not because the Opposition parties want to score points but because even at this stage, and after considerable movement by the Government, there are concerns which we want to explore.

Lord Bassam of Brighton: My Lords, I was expecting there to be more interest but in a sense I am grateful that there is not. I am grateful for the kind comments

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made by noble Lords and for their tolerance and forbearance in respect of our changes to the Bill at this late stage.

We are perhaps victims of our own strategy because we promised to be a listening government in this exercise as in many others. We have kept to that promise and have tried to capture the sense of concern expressed by the industry and reflected on all Benches in your Lordships' House. As was said by the noble Lord, Lord McNally, this is the House at its best looking in detail at a piece of legislation, finding it wanting in some respects and the Government able and willing to try to accommodate those real and genuine concerns.

I trust that the amendments meet with your Lordships' satisfaction and I commend them to the House.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 2 and 3:

    Page 4, line 40, leave out ("addresses and other") and insert ("traffic").

    Page 4, line 42, leave out subsection (6).

On Question, amendments agreed to.

Lord Bassam of Brighton moved Amendment No. 4:

    Page 5, line 16, at end insert--

("(9A) In this section "traffic data", in relation to any communication, means--
(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and
(d) any data identifying the data or other data as data comprised in or attached to a particular communication,
but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.").

The noble Lord said: My Lords, I beg to move.

Lord Cope of Berkeley moved, as an amendment to Amendment No. 4, Amendment No. 5:

    Line 5, leave out ("apparatus or location") and insert ("or apparatus").

The noble Lord said: My Lords, although we have accepted the generality of Amendment No. 4, a detailed point was raised with me that I believe is worth putting before your Lordships' House. It concerns the use of the word "location".

Your Lordships will appreciate that mobile telephones are becoming increasingly more sophisticated. The location of some of the newest ones can be tracked through global positioning systems or other electronic means. That means that if the location

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is regarded as traffic data, which can readily be obtained by the police and other authorities, the police will be able to follow someone carrying one of the new mobile telephones without troubling further.

I can see that that would be a great facility for the police but it could also be highly intrusive in following someone from shop to shop or from home to another location. It is not in the nature of ordinary traffic data--for instance, a telephone number--but it is a highly intrusive power.

I am not saying that the police should never be allowed to use it; the whole Bill provides a framework for giving different levels of authority to different types of information. The question posed by the amendment is where the location of a particular mobile telephone, and hence of a particular person, should fall in the categories of information to be revealed.

Amendment No. 4 suggests that it should be placed in the lowest category of traffic data, and therefore readily obtainable to the authorities, and that any invasion of privacy involved should not be considered. I beg to move.

5.15 p.m.

Lord McNally: My Lords, I believe that the Minister can use his favourite word, "proportionality", in respect of the amendment. It has been pointed out to me that in some cases the ability to track the movement of a mobile telephone could be most important; for example, in the movement of drugs. One can there see the point of the power. However, another scenario put to me was of the noble Lord, Lord Cope, meeting Mr Portillo privately. The ability to track that would be an outrageous intrusion into his private activities.

Lord Cope of Berkeley: My Lords, I am happy to meet Mr Portillo and I frequently do--and I do not mind who knows!

Lord McNally: My Lords, the scenario put to me was even more lurid, but I shall go no further. In any event, as we all know, Mr Portillo prefers landlines to mobile telephones when he is plotting something.

Returning to proportionality, one can well understand that the authorities may need such powers in relation to a serious investigation into drugs. If that were the case, surely, as the noble Lord, Lord Cope, argued, a higher rather than a lower category of authorisation should be required. It would be interesting to know why the Government have opted for the lower category.

Viscount Goschen: My Lords, I fully recognise the concerns put forward by my noble friend Lord Cope. It would be helpful to hear from the Minister the Government's intention behind the use of the word "location". It is conceivable that there could be an oversight by the Minister or there could be a deliberate attempt to include data on the location of someone carrying a mobile telephone.

Accessing information about the position of a mobile telephone transmission bears comparison with the planting of location devices on vehicles. It would

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be helpful if the Minister could remind the House about the regime for attaching location-giving devices to vehicles.

The proposal raises other issues. I can understand the Minister's intention in Amendment No. 4 that the word "location" should convey "address". But with modern e-mail communications and other types of data transmission, location and address rapidly diverge. One could use the same e-mail address to transmit from a fixed point or from mobile points at will.

I believe that my noble friend Lord Cope has put his finger on an important issue and it would be interesting to hear whether the Minister intended to mean that the location data from mobile telephones should be able to be accessed through the lower category of permission. If not, I am sure that we can come up with a compromise that might clarify the issue. However, I believe that the Bill, as it is proposed to be drafted within the amendment, leaves open a very wide door.

Lord Howell of Guildford: My Lords, I wonder whether the amendment, which my noble friend rightly has put forward, takes account of the ever-onward movement of the technologies which are moving far faster than can legislators. I think in particular of the wireless access protocol which is now progressing here in its third generation. That will give people with mobile phones access to both e-mail and the Internet, wherever they may be, and of course to the i-mode system in Japan, which many Japanese argue is superior to the WAP and, indeed, may eventually replace it. I know that it is controversial and those who invest their money in the WAP would not like to hear that. However, it is a possibility and things are moving very quickly.

In Japan--it will happen here, too--something in the region of 60 million people have mobile telephones, of whom approximately 15 million are already on the i-mode Internet e-mailing system. All those people move about all the time. There is no question of their location existing for more than a second. By definition, they are using mobile telephones for mobile business and mobile activity. I wonder whether the drafters of the Bill have understood that the vast majority of e-mail traffic will not take place in fixed locations but will be among people who are on the move in a totally inter-connected world.

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