Regulation of Investigatory Powers Bill

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Mr. Heald: It would help if the Minister could confirm that the code will deal with what the document looks like for each of the three procedures. Moreover, will there be a verification point that people can contact to confirm the document's authenticity?

Mr. Clarke: I confirm that those issues should be addressed in the code of practice. I shall ensure that those drafting the code are aware of what the hon. Gentleman has just said. Clause 62 is intended to address those points.

I think that it was an amendment tabled by the right hon. Member for Berwick-upon-Tweed and the hon Member for Hallam to clause 4(1) that addressed the hon. Gentleman's second point. I made a commitment then to write to the Committee about the EU convention and clause 4(1). I hope to be able to send that letter today or tomorrow, so that numbers of the Committee have it before we sit next week and can explore the issues in the detail that they deserve.

The principle of the Bill is that all actions should comply with the Human Rights Act 1998. If any EU member state changed its political regime in such a way that that Act was being violated, that would affect not just what we are talking about here but our international contracts and communications in a range of areas, and would, as the hon. Gentleman implies, be an extremely serious matter. That is all that I want to say on the issue now. I should prefer to deal with it fully and comprehensively in my response on the matter that was raised under clause 4(1).

Mr. Heald: I fully accept that, but can the Minister deal with a point that does not relate to whether the ECHR would apply to these agreements generally? If an official were to sign a warrant, or be involved in the process by modification or in some other way, relying on a decision made by somebody in another country-this is the ``automatic'' point that the Minister made-would we be in the clear or could we be in breach of the ECHR because of what a Belgian or French judge had decided?

Mr. Clarke: I shall address that point in detail. First, the absolute obligation of Ministers and officials in this country will be to act within the Human Rights Act 1998. They will not be allowed to act incompatibly with that Act. However, the question of ECHR compatibility will be crucial for the country as a whole, and not simply in the context of the Bill, in deciding what mutual assistance arrangements are entered into. I concede that that is relatively easy to define at the point of entering into a mutual agreement, but the regime of a country with which we had agreement under ECHR-compatible conditions might change. Even in those circumstances, the first obligation of Ministers and officials in this country would be to act within the Human Rights Act 1998 and, therefore, in a way that is compliant with the European convention on human rights.

With the permission of the Committee, I shall deal with those interesting issues more fully in my letter to the Committee later this week.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8

Contents of warrants

Question proposed, That the clause stand part of the Bill.

10 am

Mr. Heald: The European Informatics Market has raised one or two points with me and I should be grateful for the Minister's reponse on them. It states:

    Clause 8(2) may present technical problems in associating a block of data being communicated with a specific target, however identified. For example, intermediate communications links may not know the originating or destination address explicitly. This may reflect on the information that service providers will be asked to keep for interception purposes. It was confirmed at

a recent open meeting

    that both ``targeted'' warrants and ``certificated'' warrants could be issued to any service provider.

Perhaps the Minister will comment on those technical problems.

I have received an inquiry about that clause from a Mr. Cooper who is concerned about mutual assistance in criminal matters between nation states. He states:

    From the record of formal proceedings of the committee

so far,

    I see that the government has stated that the main purpose of

Clause 8

    is to facilitate compliance with acts of the European parliament. However, as was observed by both of you-

that is a reference to the hon. Member for Hallam and me-

    the clause, as drafted, permits such mutual assistance to take place beyond the confines of the European Community, and the constraints on such co-operation are not tightly defined.

He then quoted my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) and continued:

    I should like to draw your attention to the UKUSA agreement between the United Kingdom, the United States of America, Canada, Australia and New Zealand, and its significance in mutual assistance in the interception of communications for intelligence purposes between the signatories.

    As you may be aware, there has been much coverage in the press of late on the subject of an international interception system referred to as ``Echelon'', which is reputedly the embodiment of this agreement. The British government however, has thus far stubbornly refused to acknowledge the existence of such a system, in spite of statements made by other signatories confirming its existence, and describing how it has been used in the past.

    He then cites numerous websites and continues:

    I am concerned that one possibly overlooked facet of the broad scope of this clause is to permit the fairly indiscriminate use of such a system in the interception of communications of British Citizens without the provision of a proper system of oversight of its use.

    I wonder if these are concerns that the minister may be legitimately questioned on at this stage in the proceedings now that Mr. Heald has agreed not to press his amendment? If so, I should very much hope that you would do so.

    I should be interested to hear what the Minister has to say about the issues.

    STAND has a website devoted almost entirely to the Regulation of Investigatory Powers Bill, which contains a great deal on clause 8. I do not necessarily adopt all the points that it raises, but I think that the Minister should nevertheless respond to them. STAND's spokesman states:

    One of STAND's recurring worries is that each introduction of new powers for interception creates a greater opportunity for mass surveillance. This was one of our major objections to the government's previous key escrow proposals. In that case, placing copies of many users' private decryption keys in a central location would have made it much easier for determined groups to collect intelligence en masse.

We know that the Minister has abandoned that plan. STAND continues:

    One of the downsides of the unsecured Internet we use today is that, without sufficient safeguards, it makes it as easy to gather information on the public as a whole, as it does individuals.

He then refers to subsections (1), (3) and (4). He raises a question about external communications in subsection (4), saying:

    ``External communications'' means a message sent or received from outside the UK. In other words, the Security Services have a mandate to monitor all incoming and outgoing international traffic, without regard to who it's from or to, merely under the control of the general permission from the Home Secretary.

That appears to refer to the general point made by Mr. Cooper. Under the heading ``Our objections'', STAND continues:

    Now, let's consider this blanket permission in the light of the Internet. How much of your everyday Net communications fall into this category? Do you access your mail via Yahoo, or Hotmail, or Netscape? Do you use ICQ, AIM or Napster? Do you subscribe to mailing lists, hosted on US machines? Do you buy shares online at Charles Schwab or E*Trade?

He lists some other services, then continues:

    If so, congratulations. The Home Secretary has just granted the security services and police permission to monitor you-with almost no legal oversight. After such strenuous efforts, aren't we getting paranoid? Why would they want to monitor you, anyway?-

he asks, continuing:

    The simple answer is: they don't have to. All of the Net's international traffic passes through a handful of points. There, the security services can tap everyone.

He goes on to talk about trawling, monitoring and other methods. He then continues:

    Actually, it doesn't even have to be suspicious in a criminal sense. Perhaps it's commercially sensitive, interesting. If you're in business, you might like to consider just how many of your deals with foreign companies may be construed to affect ``the economic well-being of the United Kingdom''.

He concludes under the heading ``We'd like'':

    This has to go. In a globalized economy, it makes no sense to treat communications with overseas companies differently from talking to a partner in the next county. If the government wishes to tap international traffic, let us use the same principles that RIP requires of monitoring internal communications. The security services have to have specific warrants to target individuals or locations. There can be no excuse for the mass surveillance of British citizens' everyday lives, no matter how distant their colleagues.

STAND has a substantial website dealing with the Bill. It obviously feels strongly about clause 8, and I would be grateful if the Minister could answer some of those points.

The Chairman: Order. I should be grateful if hon. Members would refrain from reading out long extracts from letters, as it tends to hold up the proceedings a little.

Mr. Allan: I, too, was worried when I read through clause 8, once I had picked through the various provisions. I was especially concerned about the proposals for certificated warrants in subsection (3).

However, I shall turn first to clause 8(1), which describes two models of warrant for intercepting communications: the AA model and the RAC model. One is either a personal member and can receive assistance wherever one goes, or one is tied to a particular car and the vehicle is covered. We seem to have similar models in the Bill, in that either an individual or a set of premises will be tracked.

In the case of warrants issued against individuals, questions must be raised, in the modern world, about the breadth of interception allowed, especially when we consider the range of addresses referred to in clause 8(2), which provides for the warrant to include addresses

    that are to be used for identifying communications which are likely to be or to include communications from, or intended for, the person named

in the warrant. What link would have to be made between an individual and a particular address, be it a physical address, an e-mail address or a telephone number that the Minister had deemed to be associated with that individual? When confronted with a warrant, what test will the Minister apply in deciding whether that address is appropriate for that individual? The net could be cast far too wide, and a range of possible addresses, most of which would not be relevant, could be suggested to the Secretary of State.

If we get that judgment wrong, general trawling warrants will be able to specify a complete set of mailboxes and a particular server, rather than mailboxes that are genuinely associated with the individual in question. An individual could set up 50 mailboxes and 50 mobile phone numbers, which the security services or the police might wish to specify in the warrant. We should ensure that all-not 20, or even 49-are genuinely associated with that individual. The test in subsections (1) and (2) is therefore important.

I am concerned about the certificated warrant in subsection (3). The Government are granting themselves the kind of authority to which the hon. Member for North-East Hertfordshire referred. As I understand it, were the Government to decide that words such as ``bomb'' or ``cocaine'' fitted the definition of a serious crime, they could issue a certificate and listen for such words by monitoring traffic on a communications pipeline between the United Kingdom and the United States.

Such a certificate would grant a wide-ranging power of interception. Would it be issued under this warrant? I accept that those words may be associated with serious crimes, but I worry about proportionality. As the hon. Member for North-East Hertfordshire pointed out, monitoring all e-mail traffic between the United Kingdom and the United States for the use of key words is technically straightforward, and subsection (3) will grant that power to a Home Secretary who is minded to do that. Is that the intention behind the powers in subsection (3), or is a much narrower form of interception and certificate intended?

The issue of external communications is also important because the concept of territoriality in communications, particularly telecommunications, to which this provision refers, is diminishing. Clause 19 defines ``external communication'' as

    a communication sent or received outside the British Islands.

The Minister should comment on circumstances where a UK citizen is signed up to an American internet service provider that is located in the United States, but is communicating with another British citizen. The communication originates in the UK, and the UK is its destination, but it is sent in the meantime to a server in the United States, and re-sent or collected on request by a British citizen.

Will there be additional safeguards for communications between residents in the UK? In such circumstances, the warrant should specify the individual or the premises. However, if the second, certificated form or warrant will apply to those communicating externally, we must clarify what is meant by a communication to a ``British Islands'' citizen. Clause 19 does not make that clear, and the Minister may need to return to the concept of external communication when we consider it.

10.15 am

In general, I wish to hear the Minister's understanding of the different types of warrant. Will any communication that is deemed to be an external communication centrally received outside the United Kingdom be subject to a general picking-up procedure, rather than one that requires individual names to be placed on the warrant?

Will the Minister clarify his view of the tests that are to be applied in associating an individual with an address, and the level of certainty that will be required regarding the appropriateness of the address for the individual? I should be interested to know how he thinks the powers differ from those that exist and have already been used, especially in the context of IOCA.

Finally, will the Minister give us a definitive statement on the rumours about Echelon which have been circulating for some time? As yet, we have had no official confirmation from the UK authorities as to whether they are engaged in large-scale picking up of the traffic that goes across the interconnectors between the UK and the United States. Information comes out of other countries about the different apporaches that they take to revealing what the state does in respect of interception, so greater clarity about what the Government intend to do would assist our understanding of the kinds of interception that take place on a regular basis.

 
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