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The noble Lord said: My Lords, I have the dubious pleasure of moving this amendment. It follows one put forward in Committee. I should like to thank the noble Lord, Lord Bassam of Brighton, for the letter that he wrote to me on 4th July in response to the questions I raised on 19th June. I have to say that the letter is extremely clear--at least, as clear as it reasonably can be--and helpful in terms of the specific questions that were raised on that occasion.
The amendment before the House tonight seeks simply to insert the words, "in an external communication" into Clause 15, which, itself, provides extra safeguards in the case of certificated warrants under Clause 8. The latter allow--and allow only--general trawling for communications data of different kinds for external communications. I suspect that we are dealing here with the central passage of the Bill as regards public concerns. The extent to which any government and agencies serving under the state can utilise the powers under this Bill, especially vis-a-vis warrants under Clause 5 onwards, continues to give a great deal of angst.
I should point out at once that this amendment is still in the nature of a probing amendment. I would apologise for that were it not for the fact that we are all grappling and groping to some extent with some of the more complex parts of this measure. Indeed, when taken in conjunction with all the other clauses to which it relates, I suggest that there is no more complex clause than Clause 15.
Certificated warrants, which I call "trawl warrants", are to be applied only, as I said, to external communications. The reason being that one must differentiate between the use of targeted interception warrants for domestic policing--analogous one might think to letter opening--and the use of trawling or mass-surveillance warrants used for intelligence and national security purposes which, for some, has Orwellian implications.
Depending on the nature of the communication link intercepted, it will be extraordinarily difficult, if not impossible, to capture simply external communications. If one takes, for example, a trunk under-sea cable or microwave beam that physically leaves the United Kingdom and is intercepted somewhere under the ocean, there is no way that one can catch in one's net external communications only; indeed, we would say that one is bound--or almost bound--to catch with it internal communications that are supposed to be proof against the trawling procedure under all circumstances. That is the basis upon which the anxiety persists. As I said, the amendment is a probing one. After hearing the Minister's response, it may be necessary to have further meetings to explore matters further.
So we are talking about lawfully examining internal communications "captured" by a trawl of this kind, which will produce mixed-up, bulk information. The noble and learned Lord, Lord Lloyd, referred to the problem--it is not a new one--in his first Interception Commissioner's report. He sanctioned a non-statutory innovation that he considered would lawfully permit, first, the examination of that inadvertently captured internal material; and, secondly, the trawling for purposes broader than anti-terrorism. Anti-terrorism trawls are the one exception to the rule that there shall not be trawling for internal communications. In that second category one would be trawling for purposes which include national security, serious crime and economic well-being, as listed in the Bill. The noble and learned Lord, Lord Lloyd, christened that mechanism an "overlapping
There appears, however, to be what might be called a cart before the horse problem concerning the broader trawling. The question is: how can an overlapping warrant specify addresses, as are required by Clause 8 of the Bill, until those addresses have been identified by the broad trawl which is prevented by the Bill? That, of course, creates the paradox that you have to do that which is not permitted in order to do that which may be permitted. That is an unresolved problem whereby the practice of using these overlapping warrants is utilised.
The construction and meaning of Clause 15(3) in particular is, I suggest, still obscure to the House, certainly to these Benches. It seems to create a wholly new kind of certificate which one might call an "override certificate" that can be attached--admittedly for a three-month period only--to a certificated warrant; that is to say, one certificated under Clause 8. The effect of such an override certificate is in practice to sanction a trawl through bulk captured material obtained through a Clause 8 certificated warrant allowing search for an entity--the relevant words in the Bill are "referable to"--or a person inside the United Kingdom for the purposes of national security, serious crime, economic well-being and anti-terrorism.
However, would it be correct to interpret what the Minister wrote and what is in the Bill as the following? If a target of the security or intelligence services is using a foreign Internet service provider, that Internet service provider, being foreign, cannot be served with an interception warrant but the target's communications within the United Kingdom may still be picked up by GCHQ bulk trawling, for example, on the under-sea cable. In that case, an e-mail sent by the target to a person within the United Kingdom would still be an internal communication, even though routed via a foreign ISP. The Minister made it clear in his letter that a UK-to-UK transmission via foreign parts was none the less still an internal communication. If I am correct, that would tend to fall outside the scope of a Clause 8(4) warrant which is limited to external communications. That overlapping warrant would still be required in such a case. I apologise if this is complex and difficult to follow but I am afraid that is the nature of the case.
It is possible that overlapping warrants can lawfully be used for some kinds of internal trawling but not others, depending on interpretations of the key words, "address", "premises", "factors" and "referable to". All this is totally opaque at present. If Clause 15(3) represents either a practical or legal extension of powers, in future it will be and remain solely for the interceptions communications commissioner to ensure fair play.
I believe that these problems are compounded by the intention confirmed in the letter of the noble Lord, Lord Bassam, that in future under the Bill certificated warrants may be served on Internet service providers rather than just on telephone companies. I should like to know whether that is correct. If bulk collection from Internet service providers' networks is undertaken, the captured traffic will be a completely mixed trawl of internal and external communications which it will be possible to separate only by reading the whole catch.
If the Government do not wish to accept the amendment, which seeks to put plainly on the face of the Bill limits and safeguards--I anticipate that the Government will face difficulties in accepting it--is there any way in which the anxieties of firms, individuals and charities can be assuaged in terms of the oversight of these mixed catches of internal and external communications? The Minister may say that the interceptions commissioner has the power and duty to ensure that there is fair play in that regard. However, the anxiety at the extent to which the Bill constitutes a Trojan horse into confidential information which should remain confidential is at its most acute over that measure. We see the problem that in a trawl you cannot select only Dover sole. However, on the other hand, how do you guard against the information which you are not seeking to collect being scrutinised by those who ought not to scrutinise it and, worse still, utilised for purposes wholly outside the ambit and intention of this part of the Bill? I apologise for my discursive and, I suspect, unfollowable attempt to explain the amendment. However, I have done the best that I can. I beg to move.
Lord Cope of Berkeley: My Lords, the explanation of the amendment was slightly lengthy but, I think, absolutely necessary. It is a hideously complicated provision. It is difficult to understand how we got into the position we are now in, let alone how it is proposed to develop it in the future and in particular through this Bill.
My underlying assumption is that the distinction between internal and external communications goes back to the days when people were primarily concerned about spying. It was quite all right then to have a powerful scrutiny of external communications because they might contain spying items, whereas with internal communications we were spying on our own people, which was not done--or, at least, done to a much lesser degree. That subsequently became extended so that we could spy on our own people for counter-terrorist purposes because we are all against terrorists and terrorism is a growing threat. I do not mean that idly--it is quite true--but one can see how, historically, we have got to the position where external communications can be much more thoroughly scrutinised, and communications being examined for anti-terrorist purposes can be much more thoroughly scrutinised, than ordinary internal communications. There is a considerable acceptance that this is the rationale behind it.
But now, of course, we live in a different age--an age when it is possible to trawl over vast numbers of communications exceptionally easily for key words, for addresses, for people's names and so on. The power of computers is basically such that it enables us to do this. There must be a great temptation, a great desire, on the part of those whose job it is to catch criminals--whom we all support--to use these powerful mechanisms for the purposes we all want to see.
But, at the same time, we do not want to reach a position where people are being monitored all the time. It is 16 years since 1984; the book of that name was obviously written a good while before that, but it gives an insight as to how things might be if governments are allowed to monitor our lives too much.
The first question arising out of these provisions, and the one to which the amendment draws attention, is whether it is regarded by the Home Office as lawful to use overlapping warrants. It seems to be accepted that they have no statutory basis; on the other hand, they seem to have an excellent legal pedigree in the form of, among others, the noble and learned Lord, Lord Lloyd. I assume that the answer is, yes, they are regarded as lawful at the moment.
But, on the face of it, as the noble Lord, Lord Phillips, said, this part of the Bill represents an extension of the powers beyond what they are at the moment, either statutorily or non-statutorily. Is that the Government's intention? Are the Government attempting by the phrases used in the Bill to extend the powers beyond what they are now and not only to extend them to different forms of communications--to e-mail and so on--but to extend them in nature beyond what they are now? What is the intention of this?
I do not think that anyone would object to the powers being extended from what they are now--even if it is legally a bit uncertain--to cover different forms of communications such as e-mail and so on, but we would be concerned at a different level if the Government were setting out to extend the powers
I am not entirely convinced that the amendment is necessary. The Bill is so complicated that it is difficult to be sure whether trawling is intended by the Bill to be confined to the same things that it is confined to now for telephones and so on. If not, at the very least we should be told. We should then give consideration to whether that is what we want to do and whether Parliament is prepared to give that authorisation to the agencies which do such sterling work on our behalf.
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