Online Safety Bill

Baroness Kidron Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Weir of Ballyholme (DUP)]

My Lords, I also support Amendment 157, which stands in the name of the noble Lord, Lord Pickles, and others, including my own. As the noble Baroness, Lady Deech, indicated, it is specific in the nature of what it concentrates on. The greatest concern that arises through the amendment is with reference to category 2A. It is not necessarily incompatible with what the noble Lord, Lord Moylan, proposes; I do not intend to make any direct further comment on his amendments. While the amendment is specific, it has a resonance with some of the other issues raised on the Bill.

I am sure that everyone within this Committee would want to have a Bill that is as fit for purpose as possible. The Bill was given widespread support at Second Reading, so there is a determination across the Chamber to have that. Where we can make improvements to the Bill, we should do that and, as much as possible, try to future-proof the Bill. The wider resonance is the concern that if the Bill is to be successful, we need as much consistency and clarity within it as possible, particularly for users. Where we have a level of false dichotomy of regulations, that runs contrary to the intended purposes of the Bill and creates inadvertent opportunities for loopholes. As such, and as has been indicated, the concern is that in the Bill at present, major search engines are effectively treated in some of the regulations on a different basis from face-to-face users. For example, some of the provisions around risk assessment, the third shield and the empowerment tools are different.

As also indicated, we are not talking about some of the minor search engines. We are talking about some of the largest companies in the world, be it Google, Microsoft through Bing, Amazon through its devices or Apple through its Siri voice tool, so it is reasonable that they are brought into line with what is there is for face-to-face users. The amendment is therefore appropriate and the rationale for it is that there is a real-world danger. Mention has been made—we do not want to dwell too long on some of the examples, but I will use just one—of the realms of anti-Semitism, where I have a particular interest. For example, on search tools, a while ago there was a prompt within one search engine that Jews are evil. It was found that when that prompt was there, searches of that nature increased by 10% and when it was removed, they were reduced. It is quite fixable and it goes into a wide range of areas.

One of the ways in which technology has changed, I think for us all, is the danger that it can be abused by people who seek to radicalise others and make them extreme, particularly young children. Gone are the days when some of these extremists or terrorists were lonely individuals in an attic, with no real contact with the outside world, or hanging around occasionally in the high street while handing out poorly produced A4 papers with their hateful ideology. There is a global interconnection here and, in particular, search engines and face-to-face users can be used to try to draw young people into their nefarious activities.

I mentioned the example of extremism and radicalisation when it comes to anti-Semitism. I have seen it from my own part of the world, where there is at times an attempt by those who still see violence as the way forward in Northern Ireland to draw new generations of young people into extremist ideology and terrorist acts. There is an attempt to lure in young people and, sadly, search engines have a role within that, which is why we need to see that level of protection. Now, the argument from search engines is that they should have some level of exemptions. How can they be held responsible for everything that appears through their searches, or indeed through the web? But in terms of content, the same argument could be used for face-to-face users. It is right, as the proposer of this amendment has indicated, that there are things such as algorithmic indexing and prompt searches where they do have a level of control.

The use of algorithms has moved on considerably since my schooldays, as they surely have for everyone in this Committee, and I suspect that none of us felt that they would be used in such a fashion. We need a level of protection through an amendment such as this and, as its proposers, we are not doctrinaire on the precise form in which this should take place. We look, for example, at the provisions within Clause 11—we seek to hear what the Government have to say on that—which could potentially be used to regulate search engines. Ensuring that that power is given, and will be used by Ofcom, will go a long way to addressing many of the concerns.

I think all of us in this Committee are keen to work together to find the right solutions, but we feel that there is a need to make some level of change to the regulations that are required for search engines. None of us in this Committee believes that we will ultimately have a piece of legislation that reflects perfection, but there is a solemn duty on us all to produce legislation that is as fit for purpose and future-proofed as possible, while providing children in particular with the maximum protection in what is at times an ever-changing and sometimes very frightening world.

[Baroness Kidron (CB)]

My Lords, I agree in part with the noble Lord, Lord Moylan. I was the person who said that small was not safe, and I still feel that. I certainly do not think that anything in the Bill will make the world online 100% safe, and I think that very few noble Lords do, so it is important to say that. When we talk about creating a high bar or having zero tolerance, we are talking about ensuring that there is a ladder within the Bill so that the most extreme cases have the greatest force of law trying to attack them. I agree with the noble Lord on that.

I also absolutely agree with the noble Lord about implementation: if it is too complex and difficult, it will be unused and exploited in certain ways, and it will have a bad reputation. The only part of his amendment that I do not agree with is that we should look at size. Through the process of Committee, if we can look at risk rather than size, we will get somewhere. I share his impatience—or his inquiry—about what categories 2A and 2B mean. If category 2A means the most risky and category 2B means those that are less risky, I am with him all the way. We need to look into the definition of what they mean.

Finally, I mentioned several times on Tuesday that we need to look carefully at Ofcom’s risk profiles. Is this the answer to dealing with where risk gets determined, rather than size?

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to speak along similar lines to the noble Baroness, Lady Kidron. I will address my noble friend Lord Moylan’s comments. I share his concern that we must not make the perfect the enemy of the good but, like the noble Baroness, I do not think that size is the key issue here, because of how tech businesses grow. Tech businesses are rather like building a skyscraper: if you get the foundations wrong, it is almost impossible to change how safe the building is as it goes up and up. As I said earlier this week, small tech businesses can become big very quickly, and, if you design your small tech business with the risks to children in mind at the very beginning, there is a much greater chance that your skyscraper will not wobble as it gets taller. On the other hand, if your small business begins by not taking children into account at all, it is almost impossible to address the problem once it is huge. I fear that this is the problem we face with today’s social media companies.

The noble Baroness, Lady Kidron, hit the nail on the head, as she so often does, in saying that we need to think about risk, rather than size, as the means of differentiating the proportionate response. In Clause 23, which my noble friend seeks to amend, the important phrase is “use proportionate measures” in subsection (2). Provided that we start with a risk assessment and companies are then under the obligation to make proportionate adjustments, that is how you build safe technology companies—it is just like how you build safe buildings.

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I hope the Government will give serious consideration to moving in this direction and to accepting the force of the amendments that have been put forward today. This is not about weakening the fight against appalling harms such as child sexual abuse material and terrorism, but rather about finding the most practical way to wage that fight in a world where end-to-end encryption exists and is being used to mitigate other material risks to our online lives. I beg to move.

[Baroness Kidron (CB)]

My Lords, I support Amendment 190 in the name of the noble Lord, Lord Clement-Jones, and Amendment 285 in the name of the noble Lord, Lord Stevenson. That is not to say that I do not have a great deal of sympathy for the incredibly detailed and expert speech we have just heard, but I want to say just a couple of things.

First, I think we need to have a new conversation about privacy in general. The privacy that is imagined by one community is between the state and the individual, and the privacy that we do not have is between individuals and the commercial companies. We live in a 3D world and the argument remains 2D. We cannot do that today, but I agree with the noble Lord that many in the enforcement community do have one hand on human rights, and many in the tech world do care about human rights. However, I do not believe that the tech sector has fully fessed up to its role and the contribution it could make around privacy. I hope that, as part of the debate on the Bill, and the debate that we will have subsequently on the data Bill No. 2, we come to untangle some of the things that they defend—in my view, unnecessarily and unfairly.

[Lord Allan of Hallam (LD)]

I point out that one of the benefits of end-to-end encryption is that it precisely stops companies doing things such as targeted advertising based on the content of people’s communications. Again, I think there is a very strong and correct trend to push companies in that direction.

[Baroness Kidron (CB)]

I thank the noble Lord for the intervention. For those noble Lords who are not following the numbers, Amendment 285, which I support, would prevent general monitoring. Apart from anything else, I am worried about equivalence and other issues in relation to general monitoring. Apart from a principled position against it, I think to be explicit is helpful.

Ofcom needs to be very careful, and that is what Amendment 190 sets out. It asks whether the alternatives have been thought about, whether the conditions have been thought about, and whether the potential impact has been thought about. That series of questions is essential. I am probably closer to the community that wants to see more powers and more interventions, but I would like that to be in a very monitored and regulated form.

I thank the noble Lord for his contribution. Some of these amendments must be supported because it is worrying for us as a country to have—what did the noble Lord call it?—ambiguity about whether something is possible. I do not think that is a useful ambiguity.

[Baroness Bennett of Manor Castle (GP)]

My Lords, my name is attached to Amendment 203 in this group, along with those of the noble Lords, Lord Clement-Jones, Lord Strathcarron and Lord Moylan. I shall speak in general terms about the nature of the group, because it is most usefully addressed through the fundamental issues that arise. I sincerely thank the noble Lord, Lord Allan, for his careful and comprehensive introduction to the group, which gave us a strong foundation. I have crossed out large amounts of what I had written down and will try not to repeat, but rather pick up some points and angles that I think need to be raised.

As was alluded to by the noble Baroness, Lady Kidron, this debate and the range of these amendments shows that the Bill is currently extremely deficient and unclear in this area. It falls to this Committee to get some clarity and cut-through to see where we could end up and change where we are now.

I start by referring to a briefing, which I am sure many noble Lords have received, from a wide range of organisations, including Liberty, Big Brother Watch, the Open Rights Group, Article 19, the Electronic Frontier Foundation, Reset and Fair Vote. It is quite a range of organisations but very much in the human rights space, particularly the digital human rights space. The introduction of the briefing includes a sentence that gets to the heart of why many of us have received so many emails about this element of the Bill:

“None of us want to feel as though someone is looking over our shoulder when we are communicating”.

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It is worth coming back to the overall view of this. Sometimes we say that the security services were always able to open letters and look at individual communications, when we hope they had the legal basis to do so. Here we are talking about everything, everybody, all the time, which is an entirely different world situation to that individual, targeted legal basis.

[Baroness Kidron (CB)]

I want to take advantage of the noble Baroness having raised that point to say that perhaps I was not clear enough in my speech. While I absolutely agree about not everything, everybody, all the time, for my specific concerns around child sexual abuse, abuse of women and so on, we have to find new world order ways of creating targeted approaches so it does not have to be everything, everybody, all the time.

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This is true. Most child abuse happens offline. Online child abuse needs to be dealt with, but I worry that we will say to people, “Don’t worry, all will be well because we’re dealing with it in the Online Safety Bill”.

[Baroness Kidron (CB)]

No one in the Committee or anyone standing behind us who speaks up for children thinks that this is going to be a silver bullet. It is unacceptable to suggest that we take that position. Much child abuse takes place offline and is then put online, but the exponential way in which it is consumed, created, and spread is entirely new because of the services we are talking about. Later in Committee I will explain some of the new ways in which it is creating child abuse—new forms, new technologies, new abuse.

I am sorry to interrupt the noble Baroness. I have made my feelings clear that I am not an end-to-end encryption “breaker”. There are amendments covering this; I believe some of them will come up later in the name of the noble Lord, Lord Russell, on safety by design and so on. I also agree with the noble Baroness that we need more resources in this area for the police, teachers, social workers and so on. However, I do not want child sexual abuse to be a football in this conversation.

[Baroness Fox of Buckley (Non-Afl)]

I agree with the noble Baroness, which is precisely why I am suggesting that we need to consider whether privacy should be sacrificed totally in relation to the argument around encryption. It is difficult, and I feel awkward saying it. When I mentioned a silver bullet I was not talking about the noble Baroness or any other noble Lords present, but I have heard people say that we need this Bill because it will deal with child abuse. In this group of amendments, I am raising the fact that when I have talked about encryption with people outside of the House they have said that we need to do something to tackle the fact that these messages are being sent around. It is not just child abuse; it is also terrorism. There is a range of difficult situations.

Things can go wrong with this, and that is what I was trying to raise. For example, we have a situation where some companies are considering using, or are being asked to use, machine learning to detect nudity. Just last year, a father lost his Google account and was reported to the police for sending a naked photo of their child to the doctor for medical reasons. I am raising these as examples of the problems that we have to consider.

Child abuse is so abhorrent that we will do anything to protect children, but let me say this to the Committee, as it is where the point on privacy lies: children are largely abused in their homes, but as far as I understand it we are not as yet arguing that the state should put CCTV cameras in every home for 24/7 surveillance to stop child abuse. That does not mean that we are glib or that we do not understand the importance of child abuse; it means that we understand the privacy of your home. There are specialist services that can intervene when they think there is a problem. I am worried about the possibility of putting a CCTV camera in everyone’s phone, which is the danger of going down this route.

My final point is that these services, such as WhatsApp, will potentially leave the UK. It is important to note that. I agree with the noble Lord, Lord Allan: this is not like threatening to storm off. It is not done in any kind of pique in that way. In putting enormous pressure on these platforms to scan communications, we must remember that they are global platforms. They have a system that works for billions of people all around the world. A relatively small market such as the UK is not something for which they would compromise their billions of users around the world. As I have explained, they would not put up with it if the Chinese state said, “We have to see people’s messages”. They would just say, “We are encrypted services”. They would walk out of China and we would all say, “Well done”. There is a real, strong possibility of these services leaving the UK so we must be very careful.

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[Lord Parkinson of Whitley Bay (Con)]

I am hesitant to give too tight a definition, because we want to remain technology neutral and make sure that we are keeping an open mind to developing changes. I will think about that and write to the noble Lord. The best endeavours will inevitably change over time as new technological solutions present themselves. I point to the resourcefulness of the sector in identifying those, but I will see whether there is anything more I can add.

[Baroness Kidron (CB)]

While the Minister is reflecting, I note that the words “best endeavours” are always a bit of a worry. The noble Lord, Lord Allan, made the good point that once it is on your phone, you are in trouble and you must report it, but the frustration of many people outside this Chamber, if it has been on a phone and you cannot deal with it, is what comes next to find the journey of that piece of material without breaking encryption. I speak to the tech companies very often—indeed, I used to speak to the noble Lord, Lord Allan, when he was in position at then Facebook—but that is the question that we would like answered in this Committee, because the frustration that “It is nothing to do with us” is where we stop with our sympathy.