Data Protection and Digital Information Bill Debate
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Baroness Kidron
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Data Protection and Digital Information Bill
Baroness Kidron ExcerptsMonday 15th April 2024
(8 months, 1 week ago)
Grand CommitteeRead Full debate Data Protection and Digital Information Bill 2022-23 View all Data Protection and Digital Information Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-IV(a) Amendment for Grand Committee (Supplementary to the Fourth Marshalled List) - (15 Apr 2024)
Baroness Kidron (CB)
My Lords, I support Amendment 135 in the name of the noble Lord, Lord Bethell, to which I have added my name. He set out our struggle during the passage of the Online Safety Bill, when we made several attempts to get something along these lines into the Bill. It is worth actually quoting the Minister, Paul Scully, who said at the Dispatch Box in the other place:
“we have made a commitment to explore this … further and report back to the House in due course on whether further measures to support researcher access to data are required and, if so, whether they could also be implemented through other legislation such as the Data Protection and Digital Information Bill”.—[Official Report, Commons, 12/9/23; col. 806.]
When the Minister responds, perhaps he could update the House on that commitment and explain why the Government decided not to address it in the Bill. Although the Bill proposes a lessening of the protections on the use of personal data for research done by commercial companies, including the development of products and marketing, it does nothing to enable public interest research.
I would like to add to the list that the noble Lord, Lord Bethell, started, because as well as Melanie Dawes, the CEO of Ofcom, so too the United States National Academy of Sciences, the Lancet commission, the UN advisory body on AI, the US Surgeon General, the Broadband Commission and the Australian eSafety Commissioner have all in the last few months called for greater access to independent research.
I ask the noble Viscount to explain the Government’s thinking in detail, and I really do hope that we do not get more “wait and see”, because it does not meet the need. We have already passed online safety legislation that requires evidence, and by denying access to independent researchers, we have a perverse situation in which the regulator has to turn to the companies it is regulating for the evidence to create their codes, which, as the noble Viscount will appreciate, is a formula for the tech companies to control the flow of evidence and unduly temper the intent of the legislation. I wish to make most of my remarks on that subject.
In Ofcom’s consultation on its illegal harms code, the disparity between the harms identified and Ofcom’s proposed code caused deep concern. Volume 4 states the following at paragraph 14.12 in relation to content moderation:
“We are not proposing to recommend some measures which may be effective in reducing risks of harm. This is principally due to currently limited evidence”.
Further reading of volume 4 confirms that the lack of evidence is the given reason for failing to recommend measures across a number of harms. Ofcom has identified harms for which it does not require mitigation. This is not what Parliament intended and spectacularly fails to deliver on the promises made by Ministers. Ofcom can use its information-gathering powers to build evidence on the efficacy required to take a bolder approach to measures but, although that is welcome, it is unsatisfactory for many reasons.
First, given the interconnectedness between privacy, safety, security and competition, regulatory standards cannot be developed in silo. We have a thriving academic community that can work across different risks and identify solutions across different parts of the tech ecosystem.
Secondly, a regulatory framework in which standards are determined exclusively through private dialogue between the regulator and the regulated does not have the necessary transparency and accountability to win public trust.
Thirdly, regulators are overstretched and under-resourced. Our academics stand ready and willing to work in the public interest and in accordance with the highest ethical standards in order to scrutinise and understand the data held so very closely by tech companies, but they need a legal basis to demand access.
Fourthly, if we are to maintain our academic institutions in a post-Brexit world, we need to offer UK academics the same support as those in Europe. Article 40(4) of the European Union’s Digital Services Act requires platforms to
“provide access to data to vetted researchers”
seeking to carry out
“research that contributes to the detection, identification and understanding of systemic risks in the Union, as set out pursuant to Article 34(1), and to the assessment of the adequacy, efficiency and impacts of the risk mitigation measures pursuant to Article 35”.
It will be a considerable loss to the UK academic sector if its European colleagues have access to data that it does not.
Fifthly, by insisting on evidence but not creating a critical pathway to secure it, the Government have created a situation in which the lack of evidence could mean that Ofcom’s codes are fixed at what the tech companies tell it is possible in spring 2024, and will always be backward-looking. There is considerable whistleblower evidence revealing measures that the companies could have taken but chose not to.
I have considerable personal experience of this. For example, it was nearly a decade ago that I told Facebook that direct messaging on children’s accounts was dangerous, yet only now are we beginning to see regulation reflecting that blindingly obvious fact. That is nearly a decade in which something could have been done by the company but was not, and of which the regulator will have no evidence.
Finally, as we discussed on day one in Committee, the Government have made it easier for commercial companies to use personal data for research by lowering the bar for the collection of data and expanding the concept of research, further building the asymmetry that has been mentioned in every group of amendments we have debated thus far. It may not be very parliamentary language, but it is crazy to pass legislation and then obstruct its implementation by insisting on evidence that you have made it impossible to gather.
I would be grateful if the Minister could answer the following questions when he responds. Is it the Government’s intention that Ofcom codes be based entirely on the current practice of tech companies and that the regulator can demand only mitigations that exist currently, as evidenced by those companies? Do the Government agree that whistleblowers, NGO experts and evidence from user experience can be taken by regulators as evidence of what could or should be done? What route do the Government advise Ofcom to take to mitigate identified risks for which there are no current measures in place? For example, should Ofcom describe the required outcome and leave it to the companies to determine how they mitigate the risk, should it suggest mitigations that have been developed but not tried—or is the real outcome of the OSA to identify risk and leave that risk in place?
Do the Government accept that EU research done under the auspices of the DSA should be automatically considered as an adequate basis for UK regulators where the concerns overlap with UK law? Will the new measures announced for testing and sandboxing of AI models allow for independent research, in which academics, independent of government or tech, will have access to data? Finally, what measures will the Government take to mitigate the impact on universities of a brain drain of academics to Europe, if we do not provide equivalent legislative support to enable them to access the data required to study online safety and privacy? If the Minister is unable to answer me from the Dispatch Box, perhaps he will agree to write to me and place his letter in the Library for other noble Lords to read.
Lord Clement-Jones (LD)
My Lords, there is little for me to say. The noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron, have left no stone unturned in this debate. They introduced this amendment superbly, and I pay tribute to them and to Reset, which was with us all the way through the discussions on online harms at the Joint Committee on the draft Online Safety Bill, advocating for these important provisions.
As the noble Lord, Lord Bethell, said, there is a strong body of opinion out there. Insight from what might be called approved independent researchers would enable policy-making and regulatory innovation to keep pace with emerging trends and threats, which can span individual harms, matters of public safety and even national security. We have seen the kinds of harms taking place in social media, and it is absolutely vital that we understand what is happening under the bonnet of social media. It is crucial in detecting, identifying and understanding the systemic risks of online harms and non-compliance with law.
When we discussed the Online Safety Bill, it was a question of not just content but functionality. That was one of the key things. An awful lot of this research relates to that: how algorithms operate in amplifying content and some of the harms taking place on social media. The noble Lord, Lord Bethell, referred to X closing its API for researchers and Meta’s move to shut CrowdTangle. We are going into reverse, whereas we should be moving forward in a much more positive way. When the Online Safety Bill was discussed, we got the review from Ofcom, but we did not get the backup—the legislative power for Ofcom or the ICO to be able to authorise and accredit researchers to carry out the necessary research.
The Government’s response to date has been extremely disappointing, given the history behind this and the pressure and importance of this issue. This dates from discussions some way back, even before the Joint Committee met and heard the case for this kind of researcher access. This Bill is now the best vehicle by which to introduce a proper regime on access for researchers. As the noble Baroness, Lady Kidron, asked, why, having had ministerial assurances, are we not seeing further progress? Are we just going to wait until Ofcom produces its review, which will be at the tail end of a huge programme of work which it has to carry out in order to implement the Online Safety Act?
Viscount Camrose (Con)
My Lords, as ever, many thanks to all noble Lords who spoke in the debate.
Amendment 135, tabled by my noble friend Lord Bethell, would enable researchers to access data from data controllers and processors in relation to systemic risks to the UK and non-compliance with regulatory law. The regime would be overseen by the ICO. Let me take this opportunity to thank both my noble friend for the ongoing discussions we have had and the honourable Members in the other place who are also interested in this measure.
Following debates during the passage of the Online Safety Act, the Government have been undertaking further work in relation to access to data for online safety researchers. This work is ongoing and, as my noble friend Lord Bethell will be aware, the Government are having ongoing conversations on this issue. As he knows, the online safety regime is very broad and covers issues that have an impact on national security and fraud. I intend to write to the Committee with an update on this matter, setting out our progress ahead of Report, which should move us forward.
While we recognise the benefits of improving researchers’ access to data—for example, using data to better understand the impact of social media on users—this is a highly complex issue with several risks that are not currently well understood. Further analysis has reiterated the complexities of the issue. My noble friend will agree that it is vital that we get this right and that any policy interventions are grounded in the evidence base. For example, there are risks in relation to personal data protection, user consent and the disclosure of commercially sensitive information. Introducing a framework to give researchers access to data without better understanding these risks could have significant consequences for data security and commercially sensitive information, and could potentially destabilise any data access regime as it is implemented.
In the meantime, the Online Safety Act will improve the information available to researchers by empowering Ofcom to require major providers to publish a broad range of online safety information through annual transparency reports. Ofcom will also be able to appoint a skilled person to undertake a report to assess compliance or to develop its understanding of the risk of non-compliance and how to mitigate it. This may include the appointment of independent researchers as skilled persons. Further, Ofcom is required to conduct research into online harms and has the power to require companies to provide information to support this research activity.
Moving on to the amendment specifically, it is significantly broader than online safety and the EU’s parallel Digital Services Act regime. Any data controllers and processors would be in scope if they have more than 1 million UK users or customers, if there is a large concentration of child users or if the service is high-risk. This would include not just social media platforms but any organisation, including those in financial services, broadcasting and telecoms as well as any other large businesses. Although we are carefully considering international approaches to this issue, it is worth noting that much of the detail about how the data access provisions in the Digital Services Act will work in practice is yet to be determined. Any policy interventions in this space should be predicated on a robust evidence base, which we are in the process of developing.
The amendment would also enable researchers to access data to research systemic risks to compliance with any UK regulatory law that is upheld by the ICO, Ofcom, the Competition and Markets Authority, and the Financial Conduct Authority. The benefits and risks of such a broad regime are not understood and are likely to vary across sectors. It is also likely to be inappropriate for the ICO to be the sole regulator tasked with vetting researchers across the remits of the other regulators. The ICO may not have the necessary expertise to make this determination about areas of law that it does not regulate.
Ofcom already has the power to gather information that it requires for the purpose of exercising its online safety functions. This power applies to companies in scope of the duties and, where necessary, to other organisations or persons who may have relevant information. Ofcom can also issue information request notices to overseas companies as well as to UK-based companies. The amendment is also not clear about the different types of information that a researcher may want to access. It refers to a data controller and processors—concepts that relate to the processing of personal data under data protection law—yet researchers may also be interested in other kinds of data, such as information about a service’s systems and processes.
Although the Government continue to consider this issue—I look forward to setting out our progress between now and Report—for the reasons I have set out, I am not able to accept this amendment. I will certainly write to the Committee on this matter and to the noble Baroness, Lady Kidron, with a more detailed response to her questions—there were more than four of them, I think—in particular those about Ofcom.
Baroness Kidron (CB)
Perhaps I could encourage the Minister to say at least whether he is concerned that a lack of evidence might be impacting on the codes and powers that we have given to Ofcom in order to create the regime. I share his slight regret that Ofcom does not have this provision that is in front of us. It may be that more than one regulator needs access to research data but it is the independents that we are talking about. We are not talking about Ofcom doing things and the ICO doing things. We are talking about independent researchers doing things so that the evidence exists. I would like to hear just a little concern that the regime is suffering from a lack of evidence.
Viscount Camrose (Con)
I am thinking very carefully about how best to answer. Yes, I do share that concern. I will set this out in more detail when I write to the noble Baroness and will place that letter in the House of Lords Library. In the meantime, I hope that my noble friend will withdraw his amendment.
Baroness Kidron (CB)
My Lords, I will speak to Amendments 142, 143 and 150 in my name, and I thank other noble Lords for their support.
We have spent considerable time across the digital Bills—the online safety, digital markets and data Bills—talking about the speed at which industry moves and the corresponding need for a more agile regulatory system. Sadly, we have not really got to the root of what that might look like. In the meantime, we have to make sure that regulators and Governments are asked to fulfil their duties in a timely manner.
Amendment 142 puts a timeframe on the creation of codes under the Act at 18 months. Data protection is a mature area of regulatory oversight, and 18 months is a long time for people to wait for the benefits that accrue to them under legislation. Similarly, Amendment 143 ensures that the transition period from the code being set to it being implemented is no more than 12 months. Together, that creates a minimum of two and half years. In future legislation on digital matters, I would like to see a very different approach that starts with the outcome and gives companies 12 months to comply, in any way they like, to ensure that outcome. But while we remain in the world of statutory code creation, it must be bound by a timeframe.
I have seen time and again, after the passage of a Bill, Parliament and civil society move on, including Ministers and key officials—as well as those who work at the regulator—and codes lose their champions. It would be wonderful to imagine that matters progress as intended, but they do not. In the absence of champions, and without ongoing parliamentary scrutiny, codes can languish in the inboxes of people who have many calls on their time. Amendments 142 and 143 simply mirror what the Government agreed to in the OSA—it is a piece of good housekeeping to ensure continuity of attention.
I am conscious that I have spent most of my time highlighting areas where the Bill falls short, so I will take a moment to welcome the reporting provisions that the Government have put forward. Transparency is a critical aspect of effective oversight, and the introduction of an annual report on regulatory action would be a valuable source of information for all stakeholders with an interest in understanding the work of the ICO and its impact.
Amendment 150 proposes that those reporting obligations also include a requirement to provide details of all activities carried out by the Information Commissioner to support, strengthen and uphold the age-appropriate design code. It also proposes that, when meeting its general reporting obligations, it should provide the information separately for children. The ICO published an evaluation of the AADC as a one-off in March 2023 and its code strategy on 3 April this year. I recognise the effort that the commissioner has made towards transparency, and the timing of his report indicates that having reporting on children specifically is something that the ICO sees as relevant and useful. However, neither of those are sufficient in terms of the level of detail provided, the reporting cadence or the focus on impact rather than the efforts that the ICO has made.
There are many frustrations for those of us who spend our time advocating for children’s privacy and safety. Among them is having to try to extrapolate child-specific data from generalised reporting. When it is not reported separately, it is usually to hide inadequacies in the level of protection afforded to children. For example, none of the community guidelines enforcement reports published for Instagram, YouTube, TikTok or Snap provides a breakdown of the violation rate data by age group, even though this would provide valuable information for academics, Governments, legislators and NGOs. Amendment 150 would go some way to addressing this gap by ensuring that the ICO is required to break down its reporting for children.
Having been momentarily positive, I would like to put on the record my concerns about the following extract from the email that accompanied the ICO’s children’s code strategy of 2 April. Having set out the very major changes to companies that the code has ushered in and explained how the Information Commissioner would spend the next few months looking at default settings, geolocation, profiling, targeting children and protecting under-13s, the email goes on to say:
“With the ongoing passage of the bill, our strategy deliberately focusses in the near term on compliance with the current code. However, once we have more clarity on the final version of the bill we will of course look to publicly signal intentions about our work on implementation and children’s privacy into the rest of the year and beyond”.
The use of the phrase “current code”, and the fact that the ICO has decided it is necessary to put its long-term enforcement strategy on hold, contradict government assurances that standards will remain the same.
The email from the ICO arrived in my inbox on the same day as a report from the US Institute of Digital Media and Child Development, which was accompanied by an impact assessment on the UK’s age-appropriate design code. It stated:
“The Institute’s review identifies an unprecedented wave of … changes made across leading social media and digital platforms, including YouTube, TikTok, Snapchat, Instagram, Amazon Marketplace, and Google Search. The changes, aimed at fostering a safer, more secure, and age-appropriate online environment, underscore the crucial role of regulation in improving the digital landscape for children and teens”.
In June, the Digital Futures Commission will be publishing a similar report written by the ex-Deputy Information Commissioner, Steve Wood, which has similarly positive but much more detailed findings. Meanwhile, we hear the steady drumbeat of adoption of the code in South America, Australia and Asia, and in additional US states following California’s lead. Experts in both the US and here in the UK evidence that this is a regulation that works to make digital services safer and better for children.
I therefore have to ask the Minister once again why the Government are downgrading child protection. If he, or those in the Box advising him, are even slightly tempted to say that they are not, I ask that they reread the debates from the last two days in Committee, in which the Government removed the balancing test to automated decision-making and the Secretary of State’s powers were changed to have regard to children rather than to mandate child protections. The data impact assessment provisions have also been downgraded, among the other sleights of hand that diminish the AADC.
The ICO has gone on record to say that it has put its medium to long-term enforcement strategy on hold, and the Minister’s letter sent on the last day before recess says that the AADC will be updated to reflect the Bill. I would like nothing more than a proposal from the Government to put the AADC back on a firm footing. I echo the words said earlier by the noble Baroness, Lady Jones, that it is time to start talking and stop writing. I am afraid that, otherwise, I will be tabling amendments on Report that will test the appetite of the House for protecting children online. In the meantime, I hope the Minister will welcome and accept the very modest proposals in this group.
Baroness Harding of Winscombe (Con)
My Lords, as is so often the case on this subject, I support the noble Baroness, Lady Kidron, and the three amendments that I have added my name to: Amendments 142, 143 and 150. I will speak first to Amendments 142 and 143, and highlight a couple of issues that the noble Baroness, Lady Kidron, has already covered.
Viscount Camrose (Con)
I thank the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Kidron, and other noble Lords who have tabled and signed amendments in this group. I also observe what a pleasure it is to be on a Committee with Batman and Robin—which I was not expecting to say, and which may be Hansard’s first mention of those two.
The reforms to the Information Commissioner’s Office within the Bill introduce a strategic framework of objectives and duties to provide context and clarity on the commissioner’s overarching objectives. The reforms also put best regulatory practice on to a statutory footing and bring the ICO’s responsibilities into line with that of other regulators.
With regard to Amendment 138, the principal objective upholds data protection in an outcomes-focused manner that highlights the discretion of the Information Commissioner in securing those objectives, while reinforcing the primacy of data protection. The requirement to promote trust and confidence in the use of data will encourage innovation across current and emerging technologies.
I turn now to the question of Clause 32 standing part. As part of our further reforms, the Secretary of State can prepare a statement of strategic priorities for data protection, which positions these aims within its wider policy agenda, thereby giving the commissioner helpful context for its activities. While the commissioner must take the statement into account when carrying out functions, they are not required to act in accordance with it. This means that the statement will not be used in a way to direct what the commissioner may and may not do when carrying out their functions.
Turning to Amendment 140, we believe that the commissioner should have full discretion to enforce data protection in an independent, flexible, risk-based and proportionate manner. This amendment would tie the hands of the regulator and force them to give binding advice and proactive assurance without necessarily full knowledge of the facts, undermining their regulatory enforcement role.
In response to the amendments concerning Clauses 33 to 35 standing part, I can say that we are introducing a series of measures to increase accountability, robustness and transparency in the codes of practice process, while safeguarding the Information Commissioner’s role. The requirements for impact assessments and panel of experts mean that the codes will consider the application to, and impact on, all potential use cases. Given that the codes will have the force of law, the Secretary of State must have the ability to give her or his comments. The Information Commissioner is required to consider but not to act on those comments, preserving the commissioner’s independence. It remains for Parliament to give approval for any statutory code produced.
Amendments 142 and 143 impose a requirement on the ICO to prepare codes and for the Secretary of State to lay them in Parliament as quickly as practicable. They also limit the time that transitional provisions can be in place to a maximum of 12 months. This could mean that drafting processes are truncated or valid concerns are overlooked to hit a statutory deadline, rather than the codes being considered properly to reflect the relevant perspectives.
Given the importance of ensuring that any new codes are robust, comprehensive and considered, we do not consider imposing time limits on the production of codes to be a useful tool.
Finally, Amendment 150—
Baroness Kidron (CB)
We had this debate during the passage of the Online Safety Act. In the end, we all agreed—the House, including the Government, came to the view—that two and a half years, which is 18 months plus a transition period, was an almost egregious amount of time considering the rate at which the digital world moves. So, to consider that more than two and a half years might be required seems a little bit strange.
Viscount Camrose (Con)
I absolutely recognise the need for speed, and my noble friend Lady Harding made this point very powerfully as well, but what we are trying to do is juggle that need with the need to go through the process properly to design these things well. Let me take it away and think about it more, to make sure that we have the right balancing point. I very much see the need; it is a question of the machinery that produces the right outcome in the right timing.
Baroness Kidron (CB)
Before the Minister sits down, I would very much welcome a meeting, as the noble Baroness, Lady Harding, suggested. I do not think it is useful for me to keep standing up and saying, “You are watering down the code”, and for the Minister to stand up and say, “Oh no, we’re not”. We are not in panto here, we are in Parliament, and it would be a fantastic use of all our time to sit down and work it out. I would like to believe that the Government are committed to data protection for children, because they have brought forward important legislation in this area. I would also like to believe that the Government are proud of a piece of legislation that has spread so far and wide—and been so impactful—and that they would not want to undermine it. On that basis, I ask the Minister to accede to the noble Baroness’s request.
Viscount Camrose (Con)
I am very happy to try to find a way forward on this. Let me think about how best to take this forward.
Baroness Kidron
“Code of practice on EdTech(1) The Commissioner must prepare a code of practice in consultation with the Department for Education and in accordance with sections 33 and 34 of this Act which contains such guidance as the Commissioner considers appropriate on the processing of children's data by providers of EdTech services and products.(2) In addition, in preparing a code or amendments under this section, the Commissioner must—(a) have regard to—(i) children’s interests and fundamental rights and freedoms as set out in the United Nations Convention on the Rights of the Child and General Comment 25 on Children’s Rights in relation to the Digital Environment, and(ii) the fact that children are entitled to a higher standard of protection than adults with regard to their personal data as established in the 2018 Act;(b) consult with—(i) children,(ii) educators,(iii) parents,(iv) EdTech providers, and(v) persons who appear to the Commissioner to represent the interests of children.(3) EdTech Controllers or processors providing services or products to schools must comply with any such code and provide information on compliance to schools as part of the school’s procurement procedures.(4) Demonstrated adherence by an EdTech provider to the EdTech Code of Practice may be used by a school as a means of demonstrating compliance with their obligations as a data controller.(5) The Commissioner must prepare a report, in consultation with the EdTech industry, on the steps required to develop a certification scheme under Article 42 of the UK GDPR, to enable the industry to demonstrate the compliance of EdTech services and products with the UK GDPR, and conformity with the Age Appropriate Design Code of Practice and the EdTech Code of Practice.(6) In this section—“EdTech” means a service or product that digitise education functions including administration and management information systems, learning and assessment and safeguarding. They include services or products used within school settings and at home on the recommendation, advice or instruction of a school;“school” means a school that falls within the definition of school in section 14, 15 or 16 of Part 4 of Schedule 3 of the 2018 Act.”Member’s explanatory statement
This amendment proposes a statutory Code of Practice to provide guidance to companies that provide EdTech services and products. It aims to ensure that such companies meet their legal obligations under existing data protection law, protect children and empower schools.
Baroness Kidron (CB)
My Lords, Amendment 146 is in my name and those of the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Harding and Lady Jones; I thank them all for their support. Before I set out the amendment that would provide a code of practice for edtech and why it is so urgently required, I thank the noble Baroness, Lady Barran, and officials in the Department for Education for their engagement on this issue. I hope the Minister can approach this issue with the same desire they have shown to fill the gap that it seeks to address.
A child does not have a choice about whether they go to school. For those who do not fall into the minority who are homeschooled or who, for a reason of health or development, fall outside the education system, it is compulsory. The reason I make this point at the outset is that, if school is compulsory, it must follow that a child should enjoy the same level of privacy and safety at school as they do in any other environment. Yet we have allowed a gap in our data legislation, meaning that a child’s data is unprotected at school and, at the same time, invested in an unregulated and uncertified edtech market to develop promises of learning outcomes that range from unsubstantiated to false.
Schools are keen to adopt new technologies and say that they feel pressure to do so. In both cases, they lack the knowledge and time to assess the privacy and safety risks of the technology products that they are being sold. Amendment 146 would enable children and schools to benefit from emerging technologies. It would reduce the burden on schools in ensuring compliance so that they can get on with the job of teaching our children in a safe, developmentally appropriate and rights-respecting environment, and it would deal with companies that fail to provide evidence for their products and routinely exploit the complexity of data protection law to children’s detriment. In sum, the amendment brings forward a code of conduct for edtech.
Subsections (1) and (2) would require the ICO to bring forward a data code for edtech and tech used in education settings. In doing so, the commissioner would be required to consider children’s fundamental rights, as set out in the Convention on the Rights of the Child, and their relevance to the digital world, as adopted by the Committee on the Rights of the Child in general comment 25 in 2021. The commissioner would have to consider the fact that children are legally entitled to a higher standard of protection in respect to their personal data than adults. In keeping with other data codes, the amendment also sets out whom the ICO must consult when preparing the code, including children, parents and teachers, as well as edtech companies.
Subsection (3) would require edtech companies to provide schools with transparent information about their data-processing practices and their impact on children. This is of particular importance because the department’s own consultation showed that schools are struggling to understand the implications of being a data controller and most often accept the default settings of products and services. Having a code of conduct would allow the Information Commissioner not only to set the standards in subsections (1) and (2) but to insist on the way that information is given in order to support schools to make the right choices for their pupils.
Subsection (4) would allow schools to use edtech providers’ adherence to the code as proof of fulfilling their own data protection duties. Once again, this would alleviate the burden on teachers and school leaders.
Subsection (5) would simply give the commissioner a role in supporting a certification scheme to enable the industry to demonstrate both the compliance of edtech services and products with the UK GDPR and conformity with the age-appropriate design code of practice and the edtech code of practice. The IEEE Standards Association and For Humanity have published certification standards for the AADC but they have not yet been approved by the ICO or UKAS standards. Subsection (5) would act as a catalyst, ensuring that the ICO and the certification partners work together efficiently. Ultimately, schools will respond better to certification than to pure data law.
If the edtech sector was formally in scope of the AADC and it was robustly applied, that would do some, though not all, of what the amendment seeks to do. But in 2018, Her Majesty’s Government, as they were then, made the decision that schools are responsible for children and that the AADC would be confusing. I am not sure whether the Government of the day did not understand the AADC. It requires companies to offer children privacy by design and default. Nothing in the code would have infringed—or will infringe—on a school’s safeguarding duties, but leaving schools out of scope leaves teachers or school data protection officers with vast responsibilities for wilfully leaky products that simply should not fall to them. Many in this House thought that the Government were wrong, and since then we have seen grand abuse of the gap that was created. This is an opportunity to put that error right.
Viscount Camrose (Con)
I am grateful, as ever, to the noble Baroness, Lady Kidron, for both Amendment 146 and her continued work in championing the protection of children.
Let me start by saying that the Government strongly agree with the noble Baroness that all providers of edtech services must comply with the law when collecting and making decisions about the use of children’s data throughout the duration of their processing activities. That said, I respectfully submit that this amendment is not necessary, for the reasons I shall set out.
The ICO already has existing codes and guidance for children and has set out guidance about how the children’s code, data protection and e-privacy legislation apply to edtech providers. Although the Government recognise the value that ICO codes can have in promoting good practice and improving compliance, they do not consider that it would be appropriate to add these provisions to the Bill without further detailed consultation with the ICO and the organisations likely to be affected by them.
The guidance covers broad topics, including choosing a lawful basis for the processing; rules around information society services; targeting children with marketing; profiling children or making automated decisions about them; data sharing; children’s data rights; and exemptions relating to children’s data. Separately, as we have discussed throughout this debate, the age-appropriate design code deals specifically with the provision of online services likely to be accessed by children in the UK; this includes online edtech services. I am pleased to say that the Department for Education has begun discussions with commercial specialists to look at strengthening the contractual clauses relating to the procurement of edtech resources to ensure that they comply with the standards set out in the UK GDPR and the age-appropriate design code.
On the subject of requiring the ICO to develop a report with the edtech sector, with a view to creating a certification scheme and assessing compliance and conformity with data protection, we believe that such an approach should be at the discretion of the independent regulator.
The issues that have been raised in this very good, short debate are deeply important. Edtech is an issue that the Government are considering carefully—especially the Department for Education, given the increasing time spent online for education. I note that the DPA 2018 already contains a power for the Secretary of State to request new codes of practice, which could include one on edtech if the evidence warranted it. I would be happy to return to this in future but consider the amendment unnecessary at this time. For the reasons I have set out, I am not able to accept the amendment and hope that the noble Baroness will withdraw it.
Baroness Kidron (CB)
I thank everyone who spoke, particularly for making it absolutely clear that not one of us, including myself, is against edtech. We just want it to be fair and want the rules to be adequate.
I am particularly grateful to the noble Baroness, Lady Jones, for detailing what education data includes. It might feel as though it is just about someone’s exam results or something that might already be public but it can include things such as how often they go to see the nurse, what their parents’ immigration status is or whether they are late. There is a lot of information quite apart from this personalised education provision, to which the noble Baroness referred. In fact, we have a great deal of emerging evidence that it has no pedagogical background to it. There is also the question of huge investment right across the sector in things where we do not know what they are. I thank the noble Baroness for that.
As to the Minister’s response, I hope that he will forgive me for being disappointed. I am grateful to him for reminding us that the Secretary of State has that power under the DPA 2018. I would love for her to use that power but, so far, it has not been forthcoming. The evidence we saw from the freedom of information request is that the scheme the department wanted to put in place has been totally retracted—and clearly for resource reasons rather than because it is not needed. I find it quite surprising that the Minister can suggest that it is all gung ho here in the UK but that Germany, Holland, France, et cetera are being hysterical in regard to this issue. Each one of them has found it to be egregious.
Finally, the AADC applies only to internet society services; there is an exception for education. Where they are joint controllers, they are outsourcing the problems to the schools, which have no level of expertise in this and just take default settings. It is not good enough, I am afraid. I feel bound to say this: I understand the needs of parliamentary business, which puts just a handful of us in this Room to discuss things out of sight, but, if the Government are not willing to protect children’s data at school, when they are in loco parentis to our children, I am really bewildered as to what this Bill is for. Education is widely understood to be a social good but we are downgrading the data protections for children and rejecting every single positive move that anybody has made in Committee. I beg leave to withdraw my amendment but I will bring this back on Report.