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Lord Cope of Berkeley: That was an extremely interesting introduction to the question of communications data, which will obviously take up the next few minutes in terms of definitions, etc.

I am afraid that my attention may have lapsed. I did not hear whether the Minister said that, in future, data would be obtainable without the knowledge of the ISP. The purpose of Amendments Nos. 74A and 75A is to try to make it unlawful to obtain data without the ISP knowing. Will the black boxes be able to obtain such communications data without the knowledge of the ISP? We shall come to the other points raised by the Minister in due course.

Lord Bassam of Brighton: I think I have an answer to the question. It is not intended that a service provider's intercept capability will be used covertly by intercepting agencies. That is true for communications data, as for communications themselves. The intercept capability will only be called upon by requests in particular cases. I hope that answers the point raised by the noble Lord.

Lord Cope of Berkeley: It certainly answers the point with regard to the Government's intention in the matter, but it does not quite answer the point as to whether it would be lawful under the wording in the Bill. I shall not press the point at this time. I beg leave to withdraw the amendment.

[Amendments Nos. 74B to 75A not moved.]

10.45 p.m.

Lord Lucas moved Amendment No. 76:


The noble Lord said: This amendment is intended purely to give the Committee an opportunity to debate the meaning of "communications data". I listened with interest to the observations of the Minister in relation to the previous group of amendments. I believe that he did himself an injustice. The term "communications data" is wider than the noble Lord implied--certainly wider than anything to which we are accustomed in relation to telephone tapping. One's telephone bill provides information about the numbers called and at

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what times. That provides a fairly limited range of information. As soon as one uses a mobile phone one is communicating information about where one is at a particular time. Outgoing messages contain information as to where one is located. If one is in a city that can be fairly precise information. One begins to be able to follow a person's movements.

Presumably, communications data also comprise the kind of information that may pass between an ATM and its home computer and similar messages that give information as to when and where one's financial transactions have taken place. If one dials up one's answering machine the code to activate it will be part of one's communications data. We shall come to Amendment No. 83, but we agreed an amendment on those lines on the previous occasion. Therefore, one obtains access to data which robs someone's answering machine of the messages on it. That is an early example of the cracking of a code, but that is clearly communications data.

If one uses any remote communications system to turn on or off the burglar alarm, or to turn the heating up or down, in one's home, that is comprised within "communications data" under Amendment No. 83. Any other similar system that one uses to communicate with mechanisms, the codes that one uses to get them to do things and the effect that those codes have will become available to those who look at communications data.

The matter goes further than that when one considers the Internet. This matter was probably in the original Bill, but Amendment No. 83 and its cousin make clear that the identity of every single web page that is visited is known. It is as if under the heading "communications data" the Government are able to know about every shop that I have visited and every page of every book, magazine or article I have read. If I make a request to a search engine, in most formats that counts as communications data because it is a signal to actuate the search engine.

The noble Lord, Lord Bassam, implied that if I searched for and found an airlines booking agent, all of that would be open but that the buying of the ticket would not be. But part of the system that sells me the ticket, particularly if it is a dynamic one, is a series of web pages whose identity may well indicate the destination and time of flight. There is a lot of information in web page headers and dynamic systems, all of which comes under the heading "communications data". As we move to WAP phones and similar uses of mobile communications, all the information that one sends out, whether it be to make a restaurant booking or whatever, will be communications data. One uses WAP protocols in that way.

We present here a very complete picture of someone's life, particularly if he lives on the Internet or with mobile communications, which is a completely different scale of intrusion and knowledge from that which is comprehended by a general look at a person's telephone bill or knowledge about those to whom he posts letters. We must be clear that that is what the

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Government intend. There will be other opportunities as we go through this clause--Clause 20 stand part may provide at least one--to look at what protection should be provided having defined the situation.

Do the Government agree with my definition of "communications data"? Do they agree that it is a great deal more comprehensive than any previous provision? If so, we can proceed to further discussions on a common basis of understanding. I beg to move.

The Deputy Chairman of Committees (Lord Skelmersdale): If this amendment is agreed to, I cannot call Amendments Nos. 77 to 83 inclusive.

Lord Cope of Berkeley: It is difficult to discuss this amendment without also debating Amendment No. 77A and the others associated with it. If other noble Lords do not object, that might be one way to proceed. There seems a certain amount of agreement on that. Those amendments affect the detail.

My noble friend asked whether the Government agree with his definition of "communications data". It is difficult to envisage how the answer can be anything other than "yes". Amendment No. 77A draws attention to the words "or other data" at line 9. That makes clear that it is not just the address about which we are talking. It is other data "comprised in or attached to" a communication. That already widens the issue. So do the words "or attached to", the subject of Amendment No. 77B. All those words extend the definition of "communications data" away from pure identification.

The identification of a telephone--the number--is a fairly simple affair. But "communications data" on the Internet widen the issue a great deal, in particular, in relation to visits to websites, and so on. It becomes much more the lifestyle affair described by my noble friend Lord Lucas. We believe that it may be necessary to have greater controls over the extent of this intrusion than at present.

The analogy with telephones is not accurate. That aspect is only the beginning. This situation is more like going into someone's home. In talking about a magistrate's warrant, I stray on to a later amendment. But a magistrate's warrant is required for the police to enter someone's house. It is proper that from time to time they should obtain such a warrant, and indeed necessary from the point of view of catching criminals, and so on. No one says that such communications data, even widely drawn, should not be intercepted from time to time by the police and security services, but we need to understand how intrusive that is. We need to consider the safeguards in the light of how wide we draw the definition of "communications data".

The Earl of Northesk: The Committee seems now to be drawn into debate on Amendment No. 77A. Perhaps I may ask the Minister a simple question and make a few points.

If the intention is that the interception regime should have access to the same kind of information as at present by way of telephone logs and so on, would

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not that be facilitated by the phraseology "any address comprised in", and so on? The addition of "or other data" is unnecessary. On the other hand, if the intention is to widen the scope of data which can be intercepted--I can see no other reason for the inclusion of the phrase--it represents a considerable, potentially unwarranted, extension of interception powers. The Minister has categorically stated that that is not the purpose of the Bill. He said:


    "As I have said on a number of occasions, the Bill is designed to update legislation, primarily the Interception of Communications Act, in the light of new technology and legal and market developments, not to extend the powers, which would I think be harmful to the Bill".--[Official Report, 12/6/00; col. 1418.]

In passing, I simply say how much I agree with the sentiment of the noble Lord.

Viscount Goschen: I echo the sentiments expressed by my noble friends. As our communication technology evolves and we move further into the Internet age, the width of the definition of "communications data" becomes increasingly important.

The amendment tabled by my noble friend Lord Northesk, which removes the phrase "or other data", highlights how broad the exemption for communications data is as defined in subsection (4)(a). Does the Minister believe that, say, a password to an Internet site would be classed as being data attached to a communication, or whether it is a communication itself? Similarly, would a Word file attached to an e-mail be part of the communication? Every time the noble Lord uses his e-mail he sees the word "Attach" with a paperclip next to it. If I attach a letter as part of an e-mail, is that part of the communication? If I press the "Reply" button on my e-mail software and return an e-mail, is that attachment part of the communication?

We are entering new territory and I suggest that many elephant traps exist. It is important that we do not allow a greater back door than Parliament intends.


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