Surveillance: Citizens and the State - Constitution Committee Contents


Letter from Vernon Coaker MP, Minister of State, Home Office

  Thank you for your letter of 9 October in relation to your ongoing inquiry on the constitutional implications of the collection and use of surveillance and other personal data by the State. You asked for clarification on two points.

LOCAL AUTHORITIES' POWERS UNDER THE REGULATION OF INVESTIGATORY POWERS ACT 2000

When the Regulation of Investigatory Powers Act 2000, (RIPA), was going through its Parliamentary passage, local authorities were not included in the list of public authorities that could have access to communications data. Provision was made for an order making power that would enable other public authorities and additional purposes to be added. The making of an order requires affirmative resolution in both Houses of Parliament.

  During the passage of the Bill there was a debate on why the order making power was required and in an exchange of correspondence the then Minister of State, Charles Clarke, confirmed that there was no intention to extend the provisions in RIPA to enable local authorities access to communications data. This was because a number of public authorities, including local authorities, already had access to communications data either by arguing individual exemptions under the Data Protection Act 1998 or by other statutory powers such as Production Orders under the Police and Criminal Evidence Act (PACE), and various other pieces of legislation including the later Social Security Fraud Act 2001. When reviewing the use of communications data it was decided that a more consistent approach was needed to ensure that proper consideration was given to necessity and proportionality.

  A consultation exercise "Access to Communications Data—respecting privacy and protecting the public from Crime" was launched in March 2003. The consultation document is still available on the Home Office website on the following link http//www.homeoffice.gov.uk/documents/coms-data-2003/. This consultation document clearly sets out the issues and proposals for the inclusion of other public authorities, including local authorities, in the list of authorities that could access communications data through RIPA. It became clear that a more systematic approach was required that ensured public authorities were subjected to the same regime and to ensure a more consistent and accountable approach to all aspects including authorisations, consideration of necessity and proportionality, independent oversight and appeals mechanisms.

  Following the consultation exercise an order was laid before Parliament (Statutory Instrument 2003 No. 3172 "The Regulation of Investigatory Powers (Communication Data) Order") and passed by affirmative resolution in both Houses. The order came into effect on 5 January 2004 and gave a number of additional public authorities, including local authorities, access to communications data within the RIPA regime. In the case of local authorities, this access is limited to subscriber data and billing data. Local authorities cannot access the more sensitive traffic data nor can they have access to the content of communication.

COMMUNICATIONS DATA DATABASE

  Your second point relates to the recent media coverage of "alleged plans to create a centralised database which will place a `live tap' on every electronic communication in Britain". As you will be aware, the Government's draft legislative programme published on 14 May set out plans for a new Communications Data Bill. I think it is important to make clear that whilst we are looking at ways of retaining communications data in the future, this does not include the content of the communications, as the phrase "live-tap" implies.

  Our ability lawfully to intercept communications and obtain communications data (CD) is critical to combating the threat proposed by terrorism and in tackling serious and organised crime. This includes counter-terrorism work as well as cases of child sex abuse, kidnap, murder and drug-related crime.

  Communications data is used to support lawful interception by providing the key identifiers (such as telephone numbers) that are necessary to target interception correctly, and in a proportionate way. There are also other important uses of communications data; it has significant value as intelligence in and of itself, and it is used as evidence in criminal trials. You may recall the recent trial of Levi Bellfield for the murder of Amelie Delagrange. In this trial it was the use of communications data, from tracking the location of Mr Bellfield when he was using his mobile telephone, which tied him to the location and time of the murder.

  However, the way we are communicating with one another is changing rapidly, with a much greater reliance on Internet-based forms of communications like email, instant messaging, social networking sites and Voice Over Internet Protocol (VOIP). There was already been a big increase in the take-up of internet-based communications. This trend will continue to grow as the UK's major providers of communications networks move toward more internet-based methods of communications, with internet protocol networks being rolled out across the country.

  These changes pose significant challenges; it has been assessed that if we take no pre-emptive action, our capability to intercept communications will fall drastically from the coverage available today. Similarly, our ability to paint a persuasive picture about a subject's whereabouts and actions from communications data will be severely decreased, due to the fragmentation of data caused by internet protocols being used in core communications networks, and the proliferation of services (including third party and international services) where data will be harder to obtain or may not be obtainable at all. Without access to information provided by lawful intercept and CD, the law enforcement and security agencies' capabilities in terms of protecting national security, counter-terrorism and preventing crime will be severely affected.

  A cross-Government programme led by the Home Office has been set up to maintain our interception and CD capabilities during this time of great technological change. This aims to ensure that law enforcement, intelligence and security agencies will still have access to the same vital information that they use today in order to prevent terrorism and to tackle all forms of crime.

  You will be aware that the Home Secretary announced during her speech to the Institute for Public Policy Research on 15 October that the Government will be consulting on proposals in this area. The consultation will focus on explaining what communications data is and how it is currently accessed; what it is used for; the changing technology environment and the options we are considering to counteract the changes in technology and the safeguards that will apply to any new proposals.

  Our intention is that we take this opportunity to listen to the public and understand their concerns and views on this. We will then look at options for legislation. Any proposals that are bought forward as a result will be published in draft for consideration before being introduced—thereby ensuring that the very valuable scrutiny which we had planned for any legislation is this area can still be achieved.

October 2008


 
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