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Lord McNally: I have two conflicting briefing notes and therefore I am again grateful to the noble Lord, Lord Lucas, for helping me through the maze. I received the first briefing from the Home Office. I do not know whether it came by accident or design, but it is in "pop paper" format.
For that reason, and because of the huffing and puffing by the Home Office in saying that that is not its intention, the Committee wants to tie it down and ask it to be more specific. I believe that the code of conduct which we were promised is an element in that wish. The sooner we see it, the better. I also believe that the Committee would be wrong to allow certain definitions to slip through without more clarification and detail regarding their implications.
Lord Lucas: We seem to have been drawn into the next group, in which I am tributary to another amendment. Therefore, I had better take my comments a little further in asking what we should do with regard to this matter. In general, the Government have adduced some reasonably good reasons for wanting to extend the availability of communications data in the sense that they now define them in the Bill.
My argument is twofold. First, we should look carefully at that extension to see whether it is entirely justified. Amendment No. 83A, as complemented by Amendment No. 83, is an attempt to roll back slightly on the effects of the original drafting. Because Amendment No. 83 has been sold to us as a means of dealing with dial-through fraud, Amendment No. 83A states that communications data do not include the trail of someone's wandering through the world wide web. The question underlying that is: have we got it wrong? Are the Government saying that those are communications data, they wish them to be so, and they will stick at that? In that case, I believe that we need to consider a rather stronger regime of safeguards, closer to the warrant regime, for what is becoming closer to the kind of data obtainable under that regime than those which we are used to seeing under the old, looser, communications data regime.
I turn to another aspect which perhaps harks back to the discussion we had on the cousin to Amendment No. 83. At that time, I asked how great was the problem of dial-through fraud. We have been sold this amendment on the basis that dial-through fraud is a real problem. I asked for statistics in relation to the
Lord Bassam of Brighton: This has been a valuable, probing discussion. I am not sure that I can necessarily answer the questions raised by noble Lords. However, I believe that we may be able to go some way to helping with the difficulties that have been raised. I was intrigued by the questions as to what constitutes communications data. I understand the difficulty with that issue and I believe that the Government should try to improve the quality of the definition as it currently stands.
In our earlier discussion, I tried to outline how we saw communications data. However, I shall reflect further on the matter. We see the communications data definition as having three essential elements: first, it addresses information--that is, who a person is communicating with; secondly, it deals with usage of information--how long calls last, the time that the call was made, and so on; and, thirdly, it deals with any other information that may be held about a customer by a communication service provider. I believe that those are the three essential elements.
If we were to agree Amendment No. 76, all those elements would be removed. However, I know that that is not the noble Lord's intention. But we are insistent--a feeling which I believe is shared by us all--that we need to have an effective definition. Without it, we would probably be in breach of the European Convention on Human Rights. That convention demands clear legal limits on what kind of data can be obtained in this way. For that reason, we think that it is better to provide a definition of "communications data".
We have given a lot of thought to the issues raised by Amendments Nos. 76, 77A, 77B and 83B. It is becoming clear that the current definition is not adequate. We accept the points that have been made on that. It goes without saying that the current definition is raising severe concerns in the Internet world, because it could be interpreted far more widely than the Government intend. We are working on the issue with the help of the industry, for which we are very grateful. We think that we can come up with a solution.
We are taking representations into account. We have received more since the debate last week. Because of that and the perceived inadequacy of the definition, I should like to put it on the record that the Government's case is that "communications data" cover in what manner and by which method a person communicates with another person or machine, but do not cover what they do or say once the connection is established. That is an important element. It is necessary for communications data to be defined in such a way as to allow dial-through fraud properly to be investigated.
I hope that, in view of those assurances, noble Lords will feel able to withdraw all their amendments, as we have effectively regrouped them in this debate. I am more than happy to try to bring back a more acceptable definition. We hope that the consultation that we have had with industry will improve the quality of that definition.
It was not clear from what the Minister said whether websites that people consult and follow through--click streams, as they are sometimes known--are intended to be included in the new definition. We shall have to wait for Report stage to find out.
I, too, received the Home Office briefing to which the noble Lord, Lord McNally, referred, under the cover of a letter from the Home Secretary. It has obviously been widely distributed in an attempt to fend off some of the criticisms. It says firmly and in rather large type, so that we do not miss it:
Lord Lucas: I am grateful for that enormously helpful reply from the Minister. I shall, of course, read what he said very carefully in Hansard, but my understanding is that we are back to what we all thought that "communications data" comprised. He expressed it clearly and if that is to be written into legislation, I am more than delighted.
I see that in the modern environment, where so much information is carried over the telephone--particularly, numbers that are punched into a handset--drawing a line at the fact that I have phoned such and such a company and then ignoring the further digits that I use to work my way through its internal telephone system, which I understand is where the line will now be drawn, makes it difficult to frame the wording necessary to deal with dial-through fraud.
I return to my earlier suggestion, still unsupported by evidence because only the Government have the evidence, that perhaps that fraud is at a level at which it may be conveniently dealt with through the warrant system. If there is not much of it, that would surely be the sensible way to deal with it. Otherwise there is the automated PBX problem and the problem of people's activation of answering machines and other devices in the home, all of which look exactly like someone using
I am delighted to hear that the fact that I have dialled into, for example, Demon will be there but what I have done subsequently on the web will not. That is great progress. I look forward to receiving sight of the Minister's amendment sensibly before Report. I beg leave to withdraw my amendment.