Investigatory Powers Bill

Lord Strasburger Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Paddick]

My Lords, I will speak to our Amendments 252 to 254 and the other amendments in this group. To save the noble Lord, Lord Rooker, having to get to his feet, this one is from Apple.

As the noble Lord, Lord Harris of Haringey, just outlined, it is essential that end-to-end encryption is not compromised by technical capability notices. I anticipate that the Minister might say that Clause 231(3)(c) covers this in that it would not be technically feasible for the operator to remove electronic protection of this nature, but we support this amendment and believe that it needs to be explicit in the Bill. However, we do not believe that this amendment covers other forms of encryption. Our Amendment 252 is intended to protect UK operators from the real or perceived disadvantage they would be placed under if technical capability notices required them to make modifications that would make their product or service less secure than overseas operators, who may not be subject to or may refuse to comply with a similar technical capability notice.

Similarly, Amendment 253 is intended to prevent a technical capability notice stopping UK operators from innovating to improve the levels of security or encryption provided by their products and services in a way that would disadvantage them against overseas operators, which may not be subject to or refuse to comply with a similar technical capability notice.

Amendment 254 is intended to deal with the criticism of our amendment in Committee by the Minister, who said that he believed that it,

“would remove the Government’s ability to give a technical capability notice to telecommunications operators requiring them to remove encryption from the communications of criminals, terrorists and foreign spies”.—[Official Report, 13/7/16; cols. 272-73.]

This new amendment makes it clear that technical assistance can be given to enable interpretation and deciphering provided that it does not open the door to unauthorised access to encrypted materials by criminals, terrorists and foreign spies—essentially, what the noble Lord, Lord Harris, just said.

Amendment 252A, in the name of my noble friend Lord Strasburger, is an attempt to combine all the other amendments in this group into a much better-worded amendment. I look forward to hearing from him why this might be the case.

[Lord Strasburger (LD)]

My Lords, I shall rise to that opportunity. Amendment 251, in the name of the noble Lord, Lord Harris, and my noble friends Lord Paddick and Lady Hamwee, addresses one particular kind of encryption—namely end-to-end encryption—and it is very good as far as it goes, which is end-to-end encryption. My own Amendment 252A is also in this group and is complementary to Amendment 251. It is, in my humble opinion, a neater way of dealing with encryption that is not end-to-end encrypted than the combination of the other amendments in this group: Amendments 252, 253 and 254. It is an alternative to them.

We have been around the block many times on the subject of encryption in the context of Clauses 229 to 231. It has come up several times in our debates on the Bill, as well as in questions in this House and in the Joint Committee on the Bill. Yet we are no closer to a clear and unambiguous understanding of the Government’s position on this vital issue, as the noble Lord, Lord Harris, has so eloquently said.

It might help if we start from common ground. I doubt that any noble Lord, myself included, would deny the authorities the option of requiring an operator to decrypt a communication where: the operator already possesses the capability to do so; the sender or receiver of the communication is genuinely suspected of committing or planning a serious crime; and the appropriate process has been followed and the action has been judged necessary and proportionate by a judicial commissioner. I do not think that anybody would argue about that.

I believe there is more common ground. Ministers have repeatedly confirmed that the Government fully accept that many uses of the internet that are now an essential part of everyday life, both for individuals and for large organisations, cannot possibly continue to happen without the security provided by unbreakable encryption.

If we take those two points as read, we are left with two questions about what happens if the operator is not able to decrypt the communication. The first is: should the Secretary of State be able to force an operator to redesign its product so that in future its encryption has a weakness that permits the operator, or perhaps GCHQ, to read a suspect’s messages? The other question is: should the Secretary of State have the power to prevent an operator introducing new or modified encryption services which neither the authorities nor the operator can break? The answer to both those questions is an unequivocal, “No, the Secretary of State should not have those powers”, and noble Lords will be hard pressed to find a single cryptography specialist who has a different view. If the Government concur, as I hope they do, they should have no problem accepting Amendments 251 and 252A, which would remove the ambiguity in the current drafting.

--- Later in debate ---

So for all the reasons I have outlined, these amendments are unnecessary and in some cases dangerous. They would undermine the important principle that there should be no guaranteed safe spaces online for terrorists and criminals to communicate. I hope that the noble Lord opposite is sufficiently reassured by what I have said to withdraw his amendment.

[Lord Strasburger]

My Lords, if the noble Earl is so confident that none of the unintended consequences listed in Amendment 252A can occur, and that the Government do not want them to occur, what is his objection to putting them into the Bill?

[Earl Howe]

We already have a wide range of safeguards which I have listed. I do not see that it is necessary to go down the road the noble Lord is advocating because of the dangers that I have pointed out. These amendments would create safe spaces which I am sure that neither he nor any noble Lord would desire to occur.