Data Protection and Digital Information Bill
Baroness Kidron ExcerptsWednesday 24th April 2024
(6 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-VII Seventh marshalled list for Grand Committee - (23 Apr 2024)
Viscount Younger of Leckie (Con)
That is one of the questions that I can now answer. The power will allow this, in so far as it pertains to helping the Secretary of State establish whether the benefits are being paid properly, as with paragraph 1(2) of new Schedule 3B. Rules around living together are relevant only to some benefits. That is a very short answer, but I could expand on it.
Baroness Kidron (CB)
May I add to the very long letter? I have been sitting here worrying about this idea that one of the “signals” will be excess capital and then there are matching accounts. If the matching account has more capital—for example, the person who has a connected account is breaking the £16,000 or £6,000—does that signal trigger some sort of investigation?
Viscount Younger of Leckie (Con)
That is a very fair question, and I hope that I understand it correctly. I can say that the limit for the DWP is that it can gain only from what the third party produces. Whatever goes on behind the doors of the third party is for them and not us. Whether there is a related account and how best to operate is a matter for the bank to decide. We may therefore end up getting very limited information, in terms of the limits of our powers. I hope that helps, but I will add some more detail in the letter.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
My Lords, having listened carefully to representations from across the House at Second Reading, I am introducing this amendment to address concerns about the data preservation powers established in the Bill. The amendment provides for coroners, and procurators fiscal in Scotland, to initiate the data preservation process when they decide it is necessary and appropriate to support their investigations into a child’s death, irrespective of the suspected cause of death.
This amendment demonstrates our commitment to ensuring that coroners and procurators fiscal can access the online data they may need to support their investigation into a child’s death. It is important to emphasise that coroners and procurators fiscal, as independent judges, have discretion about whether to trigger the data preservation process. We are grateful to the families, Peers and coroners whom we spoke to in developing these measures. In particular, I thank the noble Baroness, Lady Kidron, who is in her place. I beg to move.
Baroness Kidron (CB)
My Lords, it is an unusual pleasure to support the Minister and to say that this is a very welcome amendment to address a terrible error of judgment made when the Government first added the measure to the Bill in the other place and excluded data access for coroners in respect of children who died by means other than suicide. I shall not replay here the reasons why it was wrong, but I am extremely glad that the Government have put it right. I wish to take this opportunity to pay tribute to those past and present at 5Rights and the NSPCC for their support and to those journalists who understood why data access for coroners is a central plank of online safety.
I too recognise the role of the Bereaved Families for Online Safety. They bear the pain of losing a child and, as their testimony has repeatedly attested, not knowing the circumstances surrounding that death is a particularly cruel revictimisation for families, who never lose their grief but simply learn to live with it. We owe them a debt of gratitude for putting their grief to work for the benefit of other families and other children.
Baroness Kidron
“Evidence from computer records(1) In any proceedings, a statement containing information in a document produced by a computer is not to be admissible as evidence of any fact stated therein unless it is shown—(a) that there are no reasonable grounds for believing that the information contained in the statement is inaccurate because of improper use of the computer,(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to materially affect the production of the document or the accuracy of the information it contains, and(c) that any relevant conditions specified in rules of court under subsection (2) below are satisfied.(2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules must be provided in such form and at such time as may be so required.”Member’s explanatory statement
This probing amendment reinstates the substantive provisions of section 69 of the Police and Criminal Evidence Act 1984. In light of the Post Office Horizon scandal, this would revoke the current assumption that the information provided by computers is always accurate.
Baroness Kidron (CB)
My Lords, Amendment 251 is also in the names of the noble Lords, Lord Arbuthnot and Lord Clement-Jones, and the noble Baroness, Lady Jones. I commend the noble Lord, Lord Arbuthnot, for his staunch support of the sub-postmasters over many years. I am grateful to him for adding his name to this amendment.
This amendment overturns a previous intervention in the law that has had and will continue to have far-reaching consequences if left in place: the notion that computer evidence should in law be presumed to be reliable. This error, made by the Government and the Law Commission at the turn of the century and reinforced by the courts over decades, has, as we now know, cost innocent people their reputations, their livelihoods and, in some cases, their lives.
Previously, Section 69 of the Police and Criminal Evidence Act 1984 required prosecutors in criminal cases relying on information from computers to confirm that the computer was operating correctly and could not have been tampered with before it submitted evidence. As the volume of evidence from computers increased, this requirement came to be viewed as burdensome.
In 1997, the Law Commission published a paper, Evidence in Criminal Proceedings: Hearsay and Related Topics, in which it concluded that Section 69
“fails to serve any useful purpose”.
As a result, it was repealed. The effect of this repeal was to create a common law presumption, in both criminal and civil proceedings, of the proper functioning of machines—that is to say, the computer is always right. In principle, there is a low threshold for rebutting this presumption but, in practice, as the Post Office prosecutions all too tragically show, a person challenging evidence derived from a computer will typically have no visibility of the system in question or the ways in which it could or did fail. As a result, they will not know what records of failures should be disclosed to them and might be asked for.
This situation was illustrated in the Post Office prosecution of sub-postmaster Mrs Seema Misra. Paul Marshall, Mrs Misra’s defence lawyer, describes how she was
“taunted by the prosecution for being unable to point to any … identifiable … problem”,
while they hid behind the presumption that the Horizon system was “reliable” under the law. On four occasions during her prosecution, Mrs Misra requested court order disclosure by the Post Office of Horizon error records. Three different judges dismissed her applications. Mrs Misra went to prison. She was eight weeks pregnant, and it was her son’s 10th birthday. On being sentenced, she collapsed.
The repeal of Section 69 of PACE 1984 reflects the Law Commission’s flawed belief that most computer errors were “down to the operator” or “apparent to the operator”, and that you could
“take as read that computer evidence is reliable unless a person can say otherwise”.
In the words of a colleague of mine from the University of Oxford, a professor of computing with a side consultancy specialising in finding bugs for global tech firms ahead of rollout, this assumption is “eye-wateringly mistaken”. He recently wrote to me and said:
“I have been asking fellow computer scientists for evidence that computers make mistakes, and have found that they are bewildered at the question since it is self-evident”.
There is an injustice in being told that a machine will always work as expected, and a further injustice in being told that the only way you can prove that it does not work is to ask by name for something that you do not know exists. That is to say, Mrs Misra did not have the magic word.
In discussions, the Government assert that the harm caused by Horizon was due to the egregious failures of corporate governance at the Post Office. That there has been a historic miscarriage of justice is beyond question, and the outcome is urgently awaited. But the actions of the Post Office were made possible in part because of a flaw in our legal and judicial processes. What happened at the Post Office is not an isolated incident but potentially the tip of an iceberg, where the safety of an unknown number of criminal convictions and civil judgments is called into question.
For example, the Educational Testing Service, an online test commissioned by the Home Office, wrongly determined that 97% of English language students were cheating, a determination that cost the students their right to stay in the UK and/or their ability to graduate, forfeiting thousands of pounds in student fees. The Guardian conducted interviews with dozens of the students, who described the painful consequences. One man was held in UK immigration detention centres for 11 months. Others described being forced into destitution, becoming homeless and reliant on food banks as they attempted to challenge the accusation. Others became depressed and suicidal when confronted with the wasted tuition fees and the difficulty of shaking off an allegation of dishonesty.
The widespread coverage of the Horizon scandal has made many victims of the Home Office scandal renew their efforts to clear their names and seek redress. In another case, at the Princess of Wales Hospital in 2012, nurses were wrongly accused of falsifying patient records because of discrepancies found with computer records. Some of the nurses were subjected to criminal prosecution, suffering years of legal action before the trial collapsed, when it emerged that a visit by an engineer to fix a bug had eradicated all the data that the nurses were accused of failing to gather. That vital piece of information could easily have been discovered and disclosed, if computer evidence was not automatically deemed to be reliable.
Viscount Camrose (Con)
It may have already done so, but I will certainly pass that on.
Baroness Kidron (CB)
I thank everyone who spoke and the Minister for the offer of a meeting alongside his colleagues from the MoJ. I believe he will have a very busy diary between Committee and Report, based on the number of meetings we have agreed to.
However, I want to be very clear here. We have all recognised that the story of the Post Office sub-postmasters makes this issue clear, but it is not about the sub-postmasters. I commend the Government for what they are doing. We await the inquiry with urgent interest, and I am sure I speak for everyone in wishing the sub-postmasters a fair settlement—that is not in question. What is in question is the fact that we do not have unlimited Lord Arbuthnots to be heroic about all the other things that are about to happen. I took it seriously when he said not one moment longer: it could be tomorrow.
Baroness Kidron
“Offence to use personal data or digital information to create digital models or files that facilitate the creation of AI or computer generated child sexual abuse material(1) A person commits an offence if they—(a) collect, scrape, possess, distribute or otherwise process personal data or digital information with the intention of using it, or attempting to use it, to create or train a digital model which enables the creation of AI or computer generated child sexual abuse material or priority illegal content; (b) use personal data or digital information to create, train or distribute or attempt to create, train or distribute a digital file or model that has been trained on child sexual abuse material or priority illegal content, or which enables the creation of artificial intelligence or computer generated child sexual abuse material or priority illegal content;(c) collate, or attempt to collate, digital files or models based on personal data or digital information that, when combined, enable the creation of AI or computer generated child sexual abuse material or priority illegal content;(d) possess, or attempt to possess, a digital file or model based on personal data or digital information with the intention of using it to produce or gain access to AI or computer generated child sexual abuse material or priority illegal content.(2) For the purposes of this section, “artificial intelligence or computer generated child sexual abuse material or primary priority illegal content” includes images, videos, audio including voice, chatbots, material generated by large language models, written text, computer file and avatars.(3) A person who commits an offence under subsection (1) is liable to the sentences set out in section 160 of the Criminal Justice Act 1988 and section 6 of the Protection of Children Act 1978 for the equivalent offences.(4) For the purposes of this section, “priority illegal content” is content that meets the definition of “priority illegal content” set out in section 59 of the Online Safety Act 2023.”Member’s explanatory statement
This amendment seeks to make the files trained on or trained to create “Child Sex Abuse Material” illegal.
Baroness Kidron (CB)
My Lords, I rise somewhat reluctantly to speak to Amendment 291 in my name. It could hardly be more important or necessary, but I am reluctant because I really think that the Minister, alongside his colleagues in DSIT and the Home Office, should have taken this issue up. I am quite taken aback that, despite my repeated efforts with both of those departments, they have not done so.
The purpose of the amendment is simple. It is already illegal in the UK to possess or distribute child sexual abuse material, including AI-generated or computer-generated child sexual abuse material. However, while the content is clearly covered by existing law, the mechanism that enables its creation—the files trained on or trained to create child sexual abuse material—is not. This amendment closes that gap.
Some time ago, I hosted an event at which members of OCCIT—the online child sexual exploitation and abuse covert intelligence team—gave a presentation to parliamentarians. For context, OCCIT is a law enforcement unit of the National Police Chiefs’ Council that uses covert police tactics to track down offender behaviour, with a view to identifying emerging risks in the form of new technologies, behaviours and environments. The presentation its officers gave concerned AI-generated abuse scenarios in virtual reality, and it was absolutely shattering for almost everyone who was present.
A few weeks later, the team contacted me and said that what it had showed then was already out of date. What it was now seeing was being supercharged by the ease with which criminals can train models that, when combined with general-purpose image-creation software, enable those with a sexual interest in children to generate CSAM images and videos at volume and—importantly—to order. Those building and distributing this software were operating with impunity, because current laws are insufficient to enable the police to take action against them.
In the scenarios that they are now facing, a picture of any child can be blended with existing child sexual abuse imagery, pornography or violent sexual scenarios. Images of several children can be honed into a fictitious child and used similarly or, as I will return to in a moment, a picture of an adult can be made to look younger and then used to create child sexual abuse. Among this catalogue of horrors are the made-to-order models trained using images of a child known to the perpetrator—a neighbour’s child or a family member—to create bespoke CSAM content. In short, the police were finding that the scale, sophistication and horror of violent child sexual abuse had hit a new level.
The laws that the police use to enforce against CSAM are Section 1 of the Protection of Children Act 1978 and Section 160 of the Criminal Justice Act 1988, both of which create offences in respect of indecent photographs or pseudophotographs of a child. AI content depicting child sexual abuse in the scenarios that I have just described is also illegal under the law, but creating and distributing the software models needed to generate them is not.
There are many services that allow anyone to take any public image and put it in a false situation. Although I have argued elsewhere that AI images should carry a mark of provenance, these services are not the subject of this amendment. This amendment is laser focused on criminalising AI models that are trained on or trained to create child sexual abuse material. They are specific, specialist and being traded with impunity. These models blend images of children—known children, stock photos, images scraped from social media or synthetic, fabricated AI depictions of children—with existing CSAM or pornography, and they allow paedophiles to generate bespoke CSAM scenarios.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for tabling Amendment 291, which would create several new criminal offences relating to the use of AI to collect, collate and distribute child abuse images or to possess such images after they have been created. Nobody can dispute the intention behind this amendment.
We recognise the importance of this area. We will continue to assess whether and what new offences are needed to further bolster the legislation relating to child sexual abuse and AI, as part of our wider ongoing review of how our laws need to adapt to AI risks and opportunities. We need to get the answers to these complex questions right, and we need to ensure that we are equipping law enforcement with the capabilities and the powers needed to combat child sexual abuse. Perhaps, when I meet the noble Baroness, Lady Kidron, on the previous group, we can also discuss this important matter.
However, for now, I reassure noble Lords that any child sex abuse material, whether AI generated or not, is already illegal in the UK, as has been said. The criminal law is comprehensive with regard to the production and distribution of this material. For example, it is already an offence to produce, store or share any material that contains or depicts child sexual abuse, regardless of whether the material depicts a real child or not. This prohibition includes AI-generated child sexual abuse material and other pseudo imagery that may have been AI or computer generated.
We are committed to bringing to justice offenders who deliberately misuse AI to generate child sexual abuse material. We demonstrated this as part of the road to the AI Safety Summit, where we secured agreement from NGO, industry and international partners to take action to tackle AI-enabled child sexual abuse. The strongest protections in the Online Safety Act are for children, and all companies in scope of the legislation will need to tackle child sexual abuse material as a priority. Applications that use artificial intelligence will not be exempt and must incorporate robust guard-rails and safety measures to ensure that AI models and technology cannot be manipulated for child sexual abuse purposes.
Furthermore, I reassure noble Lords that the offence of taking, making, distributing and possessing with a view to distribution any indecent photograph or pseudophotograph of a child under the age of 18 carries a maximum sentence of 10 years’ imprisonment. Possession alone of indecent photographs or pseudophotographs of children can carry a maximum sentence of up to five years’ imprisonment.
However, I am not able to accept the amendment, as the current drafting would capture legitimate AI models that have been deliberately misused by offenders without the knowledge or intent of their creators to produce child sexual abuse material. It would also inadvertently criminalise individual users who possess perfectly legal digital files with no criminal intent, due to the fact that they could, when combined, enable the creation of child sexual abuse material.
I therefore ask the noble Baroness to withdraw the amendment, while recognising the strength of feeling and the strong arguments made on this issue and reiterating my offer to meet with her to discuss this ahead of Report.
Baroness Kidron (CB)
I do not know how to express in parliamentary terms the depth of my disappointment, so I will leave that. Whoever helped the noble Viscount draft his response should be ashamed. We do not have a comprehensive system and the police do not have the capability; they came to me after months of trying to get the Home Office to act, so that is an untruth: the police do not have the capability.
I remind the noble Viscount that in previous debates his response on the bigger picture of AI has been to wait and see, but this is a here and now problem. As the noble Baroness, Lady Jones, set out, this would give purpose and reason—and here it is in front of us; we can act.
Data Protection and Digital Information Bill
Baroness Kidron ExcerptsWednesday 17th April 2024
(6 months, 2 weeks 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-V Fifth marshalled list for Grand Committee - (16 Apr 2024)
Lord Clement-Jones (LD)
My Lords, I start today with probably the most innocuous of the amendments, which is that Clause 44 should not stand part. Others are more significant, but its purpose, if one can describe it as such, is as a probing clause stand part, to see whether the Minister can explain the real motive and impact of new Section 164A, which is inserted by Clause 44. As the explanatory statement says, it appears to hinder
“data subjects’ right to lodge complaints, and extends the scope of orders under Section 166 of the Data Protection Act to the appropriateness of the Commissioner’s response to a complaint.”
I am looking to the Minister to see whether he can unpack the reasons for that and what the impact is on data subjects’ rights.
More fundamental is Amendment 153, which relates to Clause 45. This provision inserts new Section 165A into the Data Protection Act, according to which the commissioner would have the discretion to refuse to act on a complaint if the complainant did not try to resolve the infringement of their rights with the relevant organisation and at least 45 days have passed since then. The right to an effective remedy constitutes a core element of data protection—most individuals will not pursue cases before a court, because of the lengthy, time- consuming and costly nature of judicial proceedings—and acts as a deterrent against data protection violations, in so far as victims can obtain meaningful redress. Administrative remedies are particularly useful, because they focus on addressing malpractice and obtaining meaningful changes in how personal data is handled in practice.
However, the ICO indicates that in 2021-22 it did not serve a single GDPR enforcement notice, secured no criminal convictions and issued only four GDPR fines, totalling just £633,000, despite the fact that it received over 40,000 data subject complaints. Moreover, avenues to challenge ICO inaction are extremely limited. Scrutiny of the information tribunal has been restricted to a purely procedural as opposed to a substantive nature. It was narrowed even further by the Administrative Court decision, which found that the ICO was not obliged to investigate each and every complaint.
Amendment 153 would remove Clause 45. The ICO already enjoys a wide margin of discretion and little accountability for how it handles complaints. In light of its poor performance, it does not seem appropriate to expand the discretion of the new information commission even further. It would also extend the scope of orders under Section 166 of the Data Protection Act to the appropriateness of the commissioner’s response to a complaint. This would allow individuals to promote judicial scrutiny over decisions that have a fundamental impact into how laws are enforced in practice and it would increase the overall accountability of the new information commission.
We have signed Amendment 154, in the name of the noble Baroness, Lady Jones, and I look forward to hearing what she says on that. I apologise for the late tabling of Amendments 154A to 154F, which are all related to Amendments 155 and 175. Clause 47 sets out changes in procedure in the courts, in relation to the right of information of a data subject under the 2018 Act, but there are other issues that need resolving around the jurisdiction of the courts and the Upper Tribunal in data protection cases. That is the reason for tabling these amendments.
The High Court’s judgment in the Delo v ICO case held that part of the reasoning in Killock and Veale about the relative jurisdiction of the courts and tribunals was wrong. The Court of Appeal’s decision in the Delo case underlines concerns, but does not properly address the jurisdictions’ limits in Sections 166 and 167 of the 2018 Act, regarding the distinction between determining procedural failings or the merits of decisions by the ICO. Surely jurisdiction under these sections should be in either the courts or the tribunals, not both. In the view of many, including me, it should be in the tribunals. That is what these amendments seek.
It is clear from these two judgments that there was disagreement on the extent of the jurisdiction of tribunals and courts, notably between Mrs Justice Farbey and Mr Justice Mostyn. The commissioner submitted very different submissions to the Upper Tribunal, the High Court and the Court of Appeal, in relation to the extent and limits of Sections 166 and 167. It is not at all clear what Parliament’s intentions were, when passing the 2018 Act, on the extents and limits of the powers in these sections and whether the appropriate source of redress is a court or tribunal.
This has resulted in jurisdictional confusion. A large number of claims have been brought in either the courts or the tribunals, under either Section 166 or Section 167, and the respective court or tribunal has frequently ruled that the claim should have been made under the other section and it therefore does not have jurisdiction, so that the claim is struck out. The Bill offers a prime opportunity to resolve this issue.
Clause 45(5), which creates new Section 166A, would only blur the lines even more and fortify the reasoning for the claim to be put into the tribunals, rather than the courts. These amendments would give certainty to the courts and tribunals as to their powers and would be much less confusing for litigants in person, most of whom do not have the luxury of paying hundreds of thousands in court fees. This itself is another reason for this to remain in the tribunals, which do not charge fees to issue proceedings.
The proposed new clause inserted by Amendment 287 would require the Secretary of State to exercise powers under Section 190 of the 2018 Act to allow public interest organisations to raise data protection complaints on behalf of individuals generally, without the need to obtain the authorisation of each individual being represented. It would therefore implement Article 80(2) of the GDPR, which provides:
“Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate, has the right to lodge, in that Member State, a complaint with the supervisory authority which is competent pursuant to Article 77 and to exercise the rights referred to in Articles 78 and 79 if it considers that the rights of a data subject under this Regulation have been infringed as a result of the processing”.
The intention behind Article 80(2) is to allow appropriately constituted organisations to bring proceedings concerning infringements of the data protection regulations in the absence of the data subject. That is to ensure that proceedings may be brought in response to an infringement, rather than on the specific facts of an individual’s case. As a result, data subjects are, in theory, offered greater and more effective protection of their rights. Actions under Article 80(2) could address systemic infringements that arise by design, rather than requiring an individual to evidence the breaches and the specific effects to them.
At present, an affected individual—a data subject—is always required to bring a claim or complaint to a supervisory authority. Whether through direct action or under Section 187 of the 2018 Act, a data subject will have to be named and engaged. In practice, a data subject is not always identifiable or willing to bring action to address even the most egregious conduct.
Article 80(2) would fill a gap that Article 80(1) and Section 187 of the Data Protection Act are not intended to fill. Individuals can be unwilling to seek justice, exercise their rights and lodge data protection complaints on their own, either for fear of retaliation from a powerful organisation or because of the stigma that may be associated with the matter where a data protection violation occurred. Even a motivated data subject may be unwilling to take action due to the risks involved. For instance, it would be reasonable for that data subject not to want to become involved in a lengthy, costly legal process that may be disproportionate to the loss suffered or remedy available. This is particularly pressing where the infringement concerns systemic concerns rather than where an individual has suffered material or non-material damage as a result of the infringement.
Civil society organisations have long helped complainants navigate justice systems in seeking remedies in the data protection area, providing a valuable addition to the enactment of UK data protection laws. My Amendment 287 would allow public interest organisations to lodge representative complaints, even without the mandate of data subjects, to encourage the filing of well-argued, strategically important cases with the potential to improve significantly the data subject landscape as a whole. This Bill is the ideal opportunity for the Government to implement fully Article 80(2) of the GDPR from international law and plug a significant gap in the protection of UK citizens’ privacy.
In effect, this is unfinished business from our debates on the 2018 Act, when we made several attempts to persuade the Government of the merits of introducing the rights under Article 80(2). I hope that the Government will think again. These are extremely important rights and are available in many other countries governed by a similar GDPR. I beg to move.
Baroness Kidron (CB)
My Lords, as a veteran of the 2018 arguments on Article 80(2), I rise in support of Amendment 287, which would see its implementation.
Understanding and exercising personal data rights is not straightforward. Even when the rights are being infringed, it is rare that an individual data subject has the time, knowledge or ability to make a complaint to the ICO. This is particularly true for vulnerable groups, including children and the elderly, disadvantaged groups and other groups of people, such as domestic abuse survivors or members of the LGBTQ community, who may have specific reasons for not identifying themselves in relation to a complaint. It is a principle in law that a right that cannot be activated is not fully given.
A data subject’s ability to claim protection is constrained by a range of factors, none of which relates to the validity of their complaint or the level of harm experienced. Rather, the vast majority are prevented from making a complaint by a lack of expertise, capacity, time and money; by the fact that they are not aware that they have data rights; or by the fact that they understand neither that their rights have been infringed nor how to make a complaint about them.
I have considerable experience of this. I remind the Committee that I am chair of the 5Rights Foundation, which has raised important and systemic issues of non-compliance with the AADC. It has done this primarily by raising concerns with the ICO, which has then undertaken around 40 investigations based on detailed submissions. However, because the information is not part of a formalised process, the ICO has no obligation to respond to the 5Rights Foundation team, the three-month time limit for complaints does not apply and, even though forensic work by the 5Rights Foundation identified the problem, its team is not consulted or updated on progress or the outcome—all of which would be possible had it submitted the information as a formal complaint. I remind the Committee that in these cases we are talking about complaints involving children.
Viscount Camrose (Con)
I thank the noble Lord; that is an important point. The question is: how does the Sorting Hat operate to distribute cases between the various tribunals and the court system? We believe that the courts have an important role to play in this but it is about how, in the early stages of a complaint, the case is allocated to a tribunal or a court. I can see that more detail is needed there; I would be happy to write to noble Lords.
Baroness Kidron (CB)
Before we come to the end of this debate, I just want to raise something. I am grateful to the Minister for offering to bring forward the 2021 consultation on Article 80(2)—that will be interesting—but I wonder whether, as we look at the consultation and seek to understand the objections, the Government would be willing to listen to our experiences over the past two or three years. I know I said this on our previous day in Committee but there is, I hope, some point in ironing out some of the problems of the data regime that we are experiencing in action. I could bring forward a number of colleagues on that issue and on why it is a blind spot for both the ICO and the specialist organisations that are trying to bring systemic issues to its attention. It is very resource-heavy. I want a bit of goose and gander here: if we are trying to sort out some of the resourcing and administrative nightmares in dealing with the data regime, from a user perspective, perhaps a bit of kindness could be shown to that problem as well as to the problem of business.
Viscount Camrose (Con)
I would be very happy to participate in that discussion, absolutely.
Data Protection and Digital Information Bill
Baroness Kidron ExcerptsMonday 15th April 2024
(6 months, 2 weeks 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.
Data Protection and Digital Information Bill
Baroness Kidron ExcerptsWednesday 27th March 2024
(7 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-III Third marshalled list for Grand Committee - (25 Mar 2024)
Lord Clement-Jones (LD)
My Lords, once more into the trenches we go before Easter. In moving Amendment 53, I will also speak to Amendments 54, 55, 57, 69, 70, 71 and 72 and the Clause 14 stand part notice.
The Bill contains a number of wide delegated powers, giving the Secretary of State the power to amend the UK GDPR via statutory instrument. The Government have said that the UK GDPR’s key elements remain sound and that they want to continue to offer a high level of protection for the public’s data, but that is no guarantee against significant reforms being brought in through a process that eludes full parliamentary scrutiny through primary legislation. Proposed changes to the UK GDPR should be contained in the Bill, where they can be debated and scrutinised properly via the primary legislation process. As it stands, key provisions of the UK GDPR can subsequently be amended via statutory instrument, which, in this case, is an inappropriate legislative process that affords much less scrutiny and debate, if debates are held at all.
The UK GDPR treats a solely automated decision as one without “meaningful human involvement”. The public are protected from being subject to solely automated decision-making where the decision has a legal or “similarly significant effect”. Clause 14(1) inserts new Article 22D(1) into the UK GDPR, which allows the Secretary of State to make regulations that deem a decision to have involved “meaningful human involvement”, even if there was no active review by a human decision-maker. New Article 22D(2) similarly allows the Secretary of State to make regulations to determine whether a decision made had a “similarly significant effect” to a legal effect. For example, in summer 2021 there was the A-level algorithm grading scandal. If something like that were to reoccur, under this new power a Minister could lay regulations stating that the decision to use an algorithm in grading A-levels was not a decision with a “similarly significant effect”.
New Article 22D(4) also allows the Secretary of State to add or remove, via regulations, any of the listed safeguards for automated decision-making. If the Government wish to amend or remove safeguards on automated decision-making, that should also be specified in the Bill and not left to delegated legislation. Amendments 53 to 55 and 69 to 72 would limit the Secretary of State’s power, so that they may add safeguards but cannot vary or remove those in the new Article 22D, as they stand, when the legislation comes into force.
If the clause is to be retained, we support Amendment 59A in the name of the noble Lord, Lord Holmes, which requires the Information Commissioner’s Office to develop guidance on the interpretation of the safeguards in new Article 22C and on important terms such as “similarly significant effect” and “meaningful human involvement”. It is within the Information Commissioner’s Office’s duties to issue guidance and to harmonise the interpretation of the law. As the dedicated regulator, the ICO is best placed and equipped to publish guidance and ensure consistency of application.
As a way to increase protections and incorporate more participation from those affected, Amendment 59A would add a new paragraph (7) to new Article 22D, which specifies that the Secretary of State needs to consult with the Information Commissioner’s Office if developing regulations. It also includes an obligation for the Secretary of State to consult with data subjects or their representatives, such as trade union or civil society organisations, at least every two years from the commencement of the Bill.
Our preference is for Clause 14 not to stand part of the Bill. The deployment of automated decision-making under Clause 14 risks automating harm, including discrimination, without adequate safeguards. Clause 14 creates a new starting point for all ADM using personal, but not special category, data. It is allowed, including for profiling, provided that certain safeguards are in place. The Minister said those safeguards are “appropriate” and “robust” and provide “certainty”, but I preferred what the noble Lord, Lord Bassam, said about the clause:
“We need more safeguards. We have moved from one clear position to another, which can be described as watering down or shifting the goalposts”.—[Official Report, 25/3/24; col. GC 150.]
That is very much my feeling about the clause as well.
I refer back to the impact assessment, which we discussed at some point during our discussions about Clause 9. It is very interesting that, in table 15 of the impact assessment, the savings on compliance costs are something like £7.3 million as regards AI and machine learning, which does not seem a very big number compared with the total savings on compliance costs, which the Government have put rather optimistically at £295 million.
In passing, I should say that, when I look at the savings regarding subject access requests, I see that the figure is £153 million, which is half of those so-called savings on compliance costs. I do not square that at all with what the Minister says about the total savings on compliance costs for subject access requests being 1%. I do not know quite where those figures come from, but it is a far more significant percentage: it is 50% of what the Government believe that the savings on compliance costs will be. I know that it is not part of this group, but I would be very grateful if the Minister could write to clarify that issue in due course.
Although the Minister has called these adequate, we believe that they are inadequate for three reasons. First, they shift the burden to the individual. Secondly, there is no obligation to provide any safeguards before the decision is made. Neither the Bill nor any of the material associated with it indicates what the content of this information is expected to be, nor the timescales in which that information is to be given. There is nothing to say when representations or contest may be heard, when human intervention may be sought or the level of that intervention. Thirdly, the Secretary of State has delegated powers to vary the safeguards by regulations.
Article 22 is currently one of the strongest prohibitions in the GDPR. As we know, the current starting point is that using solely automated decision-making is prohibited unless certain exemptions apply. The exemptions are limited. Now, as a result of the Government’s changes, you can use solely automated decision-making in an employment context in the UK, which you cannot do in the EU. That is a clear watering down of the restriction. The Minister keeps returning to the safeguards, but I have referred to those. We know that they are not being applied in practice even now and that hiring and firing is taking place without any kind of human review.
There is therefore an entirely inadequate basis on which we can be satisfied that the Bill will safeguard individuals from harmful automated decision-making before it is too late. In fact, the effect of the Bill will be to do the opposite: to permit unfair and unsafe ADM to occur, including discriminatory profiling ADM, which causes harm to individuals. It then places the burden on the individual to complain, without providing for any adequate safeguards to guarantee their ability to do so before the harm is already incurred. While I beg to move Amendment 53, our preference would be that Clause 14 is deleted from the Bill entirely.
Baroness Kidron (CB)
My Lords, I will speak to Amendment 57 in my name, Amendment 59 in the name of the noble Baroness, Lady Jones, and the Clause 14 stand part notice from the noble Lord, Lord Clement-Jones. In doing so, I register my support for Amendment 59A in the name of the noble Lord, Lord Holmes.
The Government assert that there is no diminution of rights in the Bill, yet Clause 14 removes the right not to be subject to an automated decision and replaces that right with inadequate safeguards, as the noble Lord, Lord Clement-Jones, said. On the previous day in Committee, the Minister made the argument that:
“These reforms clarify and simplify the rules related to solely automated decision-making without watering down any of the protections for data subjects or the fundamental data protection principles”,—[Official Report, 25/3/24; col. GC 146.]
but I hope he will at least accept that safeguards do not constitute a right. The fact that the Secretary of State has delegated powers to change the safeguards at will undermines his argument that UK citizens have lost nothing at all; they have lost the right not to be subject to an automated decision.
The fact that the Government have left some guard-rails for special category data is in itself an indication that they know they are downgrading UK data rights, because the safeguards in place are not adequate. If they were adequate, it would be unnecessary to separate out SPC data in this way. I hammer the point home by asking the Minister to explain how the protections will work in practice in an era of AI when risks can come from inference and data analytics that do not use special category data but will still have a profound impact on the work lives, health, finances and opportunities of data subjects. If it is the case that data about your neighbourhood, shopping habits, search results, steps or entertainment choices is used to infer an important decision, how would a data subject activate their rights in that case?
As an illustration of this point, the daughter of a colleague of mine, who, as it happens, has a deep expertise in data law, this year undertook a video-based interview for a Russell group university with no human contact. It was not yet an ADM system, but we are inching ever closer to it. Removing the right, as the Government propose, would place the onus on students to complain or intervene—in a non-vexatious manner, of course. Will the Minister set out how UK citizens will be protected from life-changing decisions after government changes to Article 22, particularly as, in conjunction with other changes such as subject access requests and data impact assessments, UK citizens are about to have fewer routes to justice and less transparency of what is happening to their data?
I would also be grateful if the Minister could speak to whether he believes that the granularity and precision of current profiling deployed by AI and machine learning is sufficiently guaranteed to take this fundamental right away. Similarly, I hope that the known concerns about bias and fairness in ADM will be resolved over time, but we are not there yet, so why is it that the Government have a wait-and-see policy on regulation but are not offering the same “wait and see” in relation to data rights?
On Amendment 59 in the name of the noble Baroness, Lady Jones, the number of workers anticipated to be impacted by AI is simply eye-watering. In last Friday’s debate on AI, it was said to be 300 million worldwide, and one in four across Europe. But how workers work with AI is not simply a scary vision of the near future; it is here now.
I have a family member who last year left an otherwise well-paid and socially useful job when they introduced surveillance on to his computer during his working from home. At the time, he said that the way in which it impacted on both his self-esteem and autonomy was so devastating that he felt like
“a cog in a machine or an Amazon worker with no agency or creativity”.
He was an exemplary employee: top of the bonus list and in all measurable ways the right person in the right job. Efficiency in work has a vital role but it is not the whole picture. We know that, if able and skilled workers lose their will to work, it comes at a considerable cost to the well-being of the nation and the public purse. Most jobs in future will involve working with or even collaborating with technology; ensuring that work is dignified and fair to the human components of this arrangement is not a drag on productivity but a necessity if society is to benefit from changes to technology.
Viscount Camrose (Con)
Certainly. Being prescriptive and applying one-size-fits-all measures for all processes covered by the Bill encourages organisations to follow a process, but focusing on outcomes encourages organisations to take better ownership of the outcomes and pursue the optimal privacy and safety mechanisms for those organisations. That is guidance that came out very strongly in the Data: A New Direction consultation. Indeed, in the debate on a later group we will discuss the use of senior responsible individuals rather than data protection officers, which is a good example of removing prescriptiveness to enhance adherence to the overall framework and enhance safety.
Baroness Kidron (CB)
This seems like a very good moment to ask whether, if the variation is based on outcome and necessity, the Minister agrees that the higher bar of safety for children should be specifically required as an outcome.
Viscount Camrose (Con)
I absolutely agree about the outcome of higher safety for children. We will come to debate whether the mechanism for determining or specifying that outcome is writing that down specifically, as suggested.
Baroness Kidron (CB)
I am sure the Minister knew I was going to stand up to say that, if it is not part of the regulatory instruction, it will not be part of the outcome. The point of regulation is to determine a floor— never a ceiling—below which people cannot go. Therefore, if we wish to safeguard children, we must have that floor as part of the regulatory instruction.
Viscount Camrose (Con)
Indeed. That may well be the case, but how that regulatory instruction is expressed can be done in multiple ways. Let me continue; otherwise, I will run out of time.
Viscount Camrose (Con)
Let me make the broad point that there is no single list of outcomes for the whole Bill but, as we go through clause by clause, I hope the philosophy behind it, of being less prescriptive about process and more prescriptive about the results of the process that we desire, should emerge—not just on Clause 14 but as the overall philosophy underlying the Bill. Regulation-making powers can also be used to vary the existing safeguards, add additional safeguards and remove additional safeguards added at a later date.
On the point about having regard, it is important that the law is drafted in a way that allows it to adapt as technology advances. Including prescriptive requirements in the legislation reduces this flexibility and undermines the purpose of this clause and these powers to provide additional legal clarity when it is deemed necessary and appropriate in the light of the fast-moving advances in and adoption of technologies relevant to automated decision-making. I would like to reassure noble Lords that the powers can be used only to vary the existing safeguards, add additional ones and remove them. They cannot remove any of the safeguards written into the legislation.
Amendments 53 to 55 and 69 to 71 concern the Secretary of State powers relating to the terms “significant decisions” and “meaningful human involvement”. These powers enable the Secretary of State to provide a description of decisions that do or do not have a significant effect on data subjects, and describe cases that can be taken to have, or not to have, meaningful human involvement. As technology adoption grows and new technologies emerge, these powers will enable the Government to provide legal clarity, if and when deemed necessary, to ensure that people are protected and have access to safeguards when they matter most. In respect of Amendment 59A, Clause 50 already provides for an overarching requirement for the Secretary of State to consult the ICO and other persons the Secretary of State considers appropriate before making regulations under the UK GDPR, including for the measures within Article 22.
Also, as has been observed—I take the point about the limitations of this, but I would like to make the point anyway—any changes to the regulations are subject to the affirmative procedure and so must be approved by both Houses. As with other provisions of the Bill, the ICO will seek to provide organisations with timely guidance and support to assist them in interpreting and applying the legislation. As such, I would ask the noble Lord, Lord Clement Jones, and my noble friend Lord Holmes—were he here—not to press their amendments.
Amendment 57 in the name of the noble Baroness, Lady Kidron, seeks to ensure that, when exercising regulation-making powers in relation to the safeguards in Article 22 of the UK GDPR, the Secretary of State should uphold the level of protection that children are entitled to in the Data Protection Act 2018. As I have said before, Clause 50 requires the Secretary of State to consult the ICO and other persons he or she considers appropriate. The digital landscape and its technologies evolve rapidly, presenting new challenges in safeguarding children. Regular consultations with the ICO and stakeholders ensure that regulations remain relevant and responsive to emerging risks associated with solely automated decision-making. The ICO has a robust position on the protection of children, as evidenced through its guidance and, in particular, the age-appropriate design code. As such, I ask the noble Baroness not to press her amendment.
Amendments 58, 72 and 73 seek to prevent the Secretary of State varying any of the safeguards mentioned in the reformed clauses. As I assured noble Lords earlier, the powers in this provision can be used only to vary the existing safeguards, add additional safeguards and remove additional safeguards added by regulation in future; there is not a power to remove any of the safeguards.
Baroness Kidron (CB)
I apologise for breaking the Minister’s flow, especially as he had moved on a little, but I have a number of questions. Given the time, perhaps he can write to me to answer them specifically. They are all designed to show the difference between what children now have and what they will have under the Bill.
I have to put on the record that I do not accept what the Minister just said—that, without instruction, the ICO can use its old instruction to uphold the current safety for children—if the Government are taking the instruction out of the Bill and leaving it with the old regulator. I ask the Minister to tell the Committee whether it is envisaged that the ICO will have to rewrite the age-appropriate design code to marry it with the new Bill, rather than it being the reason why it is upheld. I do not think the Government can have it both ways where, on the one hand, the ICO is the keeper of the children, and, on the other, they take out things that allow the ICO to be the keeper of the children in this Bill.
Viscount Camrose (Con)
I absolutely recognise the seriousness and importance of the points made by the noble Baroness. Of course, I would be happy to write to her and meet her, as I would be for any Member in the Committee, to give—I hope—more satisfactory answers on these important points.
As an initial clarification before I write, it is perhaps worth me saying that the ICO has a responsibility to keep guidance up to date but, because it is an independent regulator, it is not for the Government to prescribe this, only to allow it to do so for flexibility. As I say, I will write and set out that important point in more detail.
Amendment 59 relates to workplace rights. I reiterate that the existing data protection legislation and our proposed reforms—
Baroness Kidron (CB)
My Lords, I speak to Amendment 144 in my name, which is supported by the noble Baronesses, Lady Harding and Lady Jones, and the noble Lord, Lord Clement-Jones. The amendment would introduce a code of practice on children and AI. Before I speak to it, I declare an interest: I am working with academic NGO colleagues in the UK, EU and US on such a code, and I am part of the UN Secretary-General’s AI advisory body’s expert group, which is currently working on sections on both AI and children and AI and education.
AI drives the recommender systems that determine all aspects of a child’s digital experience, including the videos they watch, their learning opportunities, people they follow and products they buy. But it no longer concerns simply the elective parts of life where, arguably, a child—or a parent on their behalf—can choose to avoid certain products and services. AI is invisibly and ubiquitously present in all areas of their lives, and its advances and impact are particularly evident in the education and health sectors—the first of which is compulsory and the second of which is necessary.
The proposed code has three parts. The first requires the ICO to create the code and sets out expectations of its scope. The second considers who and what should be consulted and considered, including experts, children and the frameworks that codify children’s existing rights. The third defines elements of the process, including risk assessment, defines language and puts the principles to which the code must adhere in the Bill.
I am going to get my defence in early. I anticipate that the Minister will say that the ICO has published guidance, that we do not want to exclude children from the benefits of AI and that we are in a time of “wait and see”. He might even ask why children need something different or why the AADC, which I mention so frequently, is not sufficient. Let me take each of those in turn.
On the sufficiency of the current guidance, the ICO’s non-binding Guidance on AI and Data Protection, which was last updated on 15 March 2023, has a single mention of a child in its 140 pages, in a case study about child benefits. The accompanying AI and data protection toolkit makes no mention of children, nor does the ICO’s advice to developers on generative AI, issued on 3 April 2023. There are hundreds of pages of guidance but it fails entirely to consider the specific needs of children, their rights, their development vulnerabilities or that their lives will be entirely dominated by AI systems in a way that is still unimaginable to those in this Room. Similarly, there is little mention of children in the Government’s own White Paper on AI. The only such references are limited to AI-generated child sexual abuse material; we will come to that later when we discuss Amendment 291. Even the AI summit had no main-stage event relating to children.
Of course we do not want to exclude children from the benefits of AI. A code on the use of children’s data in the development and deployment of AI technology increases their prospects of enjoying the benefits of AI while ensuring that they are protected from the pitfalls. Last week’s debate in the name of the noble Lord, Lord Holmes, showed the broad welcome of the benefits while urgently speaking to the need for certain principles and fundamental protections to be mandatory.
As for saying, “We are in a time of ‘wait and see’”, that is not good enough. In the course of this Committee, we will explore edtech that has only advertising and no learning content, children being left out of classrooms because their parents will not accept the data leaks of Google Classroom, social media being scraped to create AI-generated CSAM and how rapid advances in generative AI capabilities mark a new stage in its evolution. Some of the consequences of that include ready access to models that create illegal and abusive material at scale and chatbots that offer illegal or dangerous advice. Long before we get on to the existential threat, we have “here and now” issues. Childhood is a very short period of life. The impacts of AI are here and now in our homes, our classrooms, our universities and our hospitals. We cannot afford to wait and see.
Children are different for three reasons. First, as has been established over decades, there are ages and stages at which children are developmentally able to do certain things, such as walk, talk, understand risk and irony, and learn different social skills. This means that, equally, there are ages and stages at which they cannot do that. The long-established consensus is that family, social groups and society more broadly—including government—step in to support that journey.
Secondly, children have less voice and less choice about how and where they spend their time, so the places and spaces that they inhabit have to be fit for childhood.
Thirdly, we have a responsibility towards children that extends even beyond our responsibilities to each other; this means that it is not okay for us to legitimise profit at their expense, whether it is allowing an unregulated edtech market that exploits their data and teaches them nothing or the untrammelled use of their pictures to create child sexual abuse material.
Finally, what about the AADC? I hope that, in the course of our deliberations, we will put that on a more secure footing. The AADC addresses recommender systems in standard 12. However, the code published in August 2020 does not address generative AI which, as we have repeatedly heard, is a game-changer. Moreover, the AADC is currently restricted to information society services, which leaves a gaping hole. This amendment would address this gap.
There is an argument that the proposed code could be combined with the AADC as an update to its provisions. However, unless and until we sort out the status of the AADC in relation to the Bill, an AI kids code would be better formed as a stand-alone code. A UK code of practice on children and AI would ensure that data processors consider the fundamental rights and freedoms of children, including their safety, as they develop their products and perhaps even give innovators the appetite to innovate with children in mind.
As I pointed out at the beginning, there are many people globally working on this agenda. I hope that as we are the birthplace of the AADC and the Online Safety Act, the Government will adopt this suggestion and again be a forerunner in child privacy and safety. If, however, the Minister once again says that protections for children are not necessary, let me assure him that they will be put in place by others, and we will be a rule taker not a rule maker.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise with the advantage over the noble Lord, Lord Clement-Jones, in that I will speak to only one amendment in this group; I therefore have the right page in front of me and can note that I will speak to Amendment 252, tabled by the noble Lord, Lord Clement-Jones, and signed by me and the noble Lords, Lord Watson of Wyre Forest and Lord Maude of Horsham.
I apologise that I was not with the Committee earlier today, but I was chairing a meeting about the microbiome, which was curiously related to this Committee. One issue that came up in that meeting was data and data management and the great uncertainties that remain. For example, if a part of your microbiome is sampled and the data is put into a database, who owns that data about your microbiome? In fact, there is no legal framework at the moment to cover this. There is a legal framework about your genome, but not your microbiome. That is a useful illustration of how fast this whole area is moving and how fast technology, science and society are changing. I will actually say that I do not blame the Government for the fact of this gaping hole as it is an international hole. It is a demonstration of how we need to race to catch up as legislators and regulators to deal with the problem.
This relates to Amendment 252 in the sense that perhaps this is an issue that has arisen over time, kind of accidentally. However, I want to credit a number of campaigners, among them James O’Malley, who was the man who draw my attention to this issue, as well as Peter Wells, Anna Powell-Smith and Hadley Beeman. They are people who have seen a really simple and basic problem in the way that regulation is working and are reaching out including, I am sure, to many noble Lords in this Committee. This is a great demonstration of how campaigning has at least gone part of the way to working. I very much hope that, if not today, then some time soon, we can see this working.
What we are talking about here, as the noble Lord, Lord Clement-Jones, said, is the postal address file. It is held as a piece of private property by Royal Mail. It is important to stress that this is not people’s private information or who lives at what address; it is about where the address is. As the noble Lord, Lord Clement-Jones, set out, all kinds of companies have to pay Royal Mail to have access to this basic information about society, basic information that is assembled by society, for society.
The noble Lord mentioned Amazon having to pay for the file. I must admit that I feel absolutely no sympathy there. I am no fan of the great parasite. It is an interesting contrast to think of Amazon paying, but also to think of an innovative new start-up company, which wants to be able to access and reach people to deliver things to their homes. For this company, the cost of acquiring this file could be prohibitive. It could stop it getting started and competing against Amazon.
Viscount Camrose (Con)
I believe that the AADC already has statutory standing.
Baroness Kidron (CB)
On that point, I think that the Minister said—forgive me if I am misquoting him —risk, rules and rights, or some list to that effect. While the intention of what he said was that we have to be careful where children are using it, and the ICO has to make them aware of the risks, the purpose of a code—whether it is part of the AADC or stand-alone—is to put those responsibilities on the designers of service products and so on by default. It is upstream where we need the action, not downstream, where the children are.
Viscount Camrose (Con)
Yes, I entirely agree with that, but I add that we need it upstream and downstream.
For the reasons I have set out, the Government do not believe that it would be appropriate to add these provisions to the Bill at this time without further detailed consultation with the ICO and the other organisations involved in regulating AI in the United Kingdom. Clause 33—
Baroness Kidron (CB)
Can we agree that there will be some discussions with the ICO between now and Report? If those take place, I will not bring this point back on Report unnecessarily.
Viscount Camrose (Con)
Yes, I am happy to commit to that. As I said, we look forward to talking with the noble Baroness and others who take an interest in this important area.
Clause 33 already includes a measure that would allow the Secretary of State to request the ICO to publish a code on any matter that she sees fit, so this is an issue that we could return to in the future, if the evidence supports it, but, as I said, we consider the amendments unnecessary at this time.
Finally, Amendment 252 would place a legislative obligation on the Secretary of State regularly to publish address data maintained by local authorities under open terms—that is, accessible by anyone for any purpose and for free. High-quality, authoritative address data for the UK is currently used by more than 50,000 public and private sector organisations, which demonstrates that current licensing arrangements are not prohibitive. This data is already accessible for a reasonable fee from local authorities and Royal Mail, with prices starting at 1.68p per address or £95 for national coverage.
Baroness Kidron
“(ba) in paragraph 3(c) for “Article 32” substitute “Articles 25 and 32””Member’s explanatory statement
This amendment would add data protection by design as an additional measure for processors, to ensure that they are accountable for the design of their systems and services, noting the challenge that controllers often face when engaging processors for services such as AI and cloud computing and what influence they can have on the design.
Baroness Kidron (CB)
My Lords, I will speak to a number of amendments in this group—Amendments 79, 83, 85, 86, 96, 97, 105 and 107.
Amendment 79 proposes an addition to the amendments to Article 28 of the UK GDPR in Clause 15(4). Article 28 sets out the obligations on processors when processing personal data on behalf of controllers. Currently, paragraph 3(c) requires processors to comply with Article 32 of the UK GDPR, which relates to data security. Amendment 79 adds the requirement for processors also to comply with the privacy-by-design provision in Article 25. Article 25 requires controllers to
“at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects”.
I am not proposing an abdication of responsibility by the controller when it instructs a processor to act on its behalf but, in practice, it is hard for a controller to meet this responsibility at the time of processing if it has delegated the processing to a third party that is not bound by the same requirement. I am not normally associated with the edtech sector, but the amendment is of particular importance to it as schools are controllers but the data of children is being processed.
The amendment ensures that processors would be contractually committed to complying with Article 25. It is particularly relevant to situations where controllers procure AI systems, including facial recognition technology and edtech products. It would be helpful in both the public and private sectors and would address the power asymmetry between controller and processor when the processor is a multinational and solutions are often presented on a take-it-or-leave-it basis.
I hope noble Lords will forgive me if I take Amendment 97 out of turn, as all the others in my name relate to children’s data, whereas Amendment 97, like Amendment 79, applies to all data subjects. Amendment 97 would require public bodies to publish risk assessments to create transparency and accountability. This would also place in statute a provision that is already contained in the ICO’s freedom of information publication scheme guidance. The amendment would also require the Cabinet Office to create and maintain an accessible register of public sector risk assessments to improve accountability.
In the last group, we heard that the way in which public bodies collect and process personal data has far-reaching consequences for all of us. I was moved to lay this amendment after witnessing some egregious examples from the education system. The public have a right to know how bodies such as health authorities, schools, universities, police forces, local authorities and government departments comply with their obligations under UK data law. This amendment is simply about creating trust.
The child-related amendments in this group are in my name and those of the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Harding and Lady Jones. Clause 17 sets out the obligations for the newly created role of “senior responsible individual”, which replaces the GDPR requirement to appoint a data protection officer. The two roles are not equivalent: a DPO is an independent adviser to senior management, while a senior responsible individual would be a member of senior management. Amendment 83 would ensure that those appointed senior responsible individuals have an understanding of the heightened risks and the protections to which children are entitled.
Over the years, I have had many conversations with senior executives at major tech companies and, beyond the lines prepared by their public affairs teams, their understanding of children’s protection is often superficial and their grasp of key issues very limited. In fact, if I had a dollar for every time a tech leader, government affairs person or engineer has said, “I never thought of it that way before”, I would be sitting on quite a fortune.
Amendment 83 would simply ensure that a senior leader who is tasked with overseeing compliance with UK data law knows what he or she is talking about when it comes to children’s privacy, and that it informs the decisions they make. It is a modest proposal, and I hope the Minister will find a way to accept it.
Amendments 85 and 86 would require a controller to consider children’s right to higher standards of privacy than adults for their personal data when carrying out its record-keeping duties. Specifically, Amendment 85 sets out what is appropriate when maintaining records of high-risk processing and Amendment 87 relates to processing that is non-high risk. Creating an express requirement to include consideration of these rights in a data controller’s processing record-keeping obligation is a simple but effective way of ensuring that systems and processes are designed with the needs and rights of children front of mind.
Clause 20 is one of the many fault lines where the gap between the assurances given that children will be just as safe and the words on the page is clear. I make clear that the amendments to Clause 18 that I put forward are, as the noble Lord, Lord Clement-Jones, said on Monday, belt and braces. They do not reach the standard of protection that children currently enjoy under the risk-assessment provisions in Article 35 of the UK GDPR and the age-appropriate design code.
A comparison of what controllers must include in a data protection impact assessment under Article 35(7) and what they would need to cover in an assessment of high-risk processing under Clause 20(3)(d) shows the inadequacies of the latter. Instead of a controller having to include
“a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller”,
under the Bill, the controller needs to include only
“a summary of the purposes of the processing”.
They need to include no systematic description—just a summary. There is no obligation to include information about the processing operations or to explain when and how the controller has determined they are entitled to rely on legitimate interest purpose. Instead of
“an assessment of the necessity and proportionality of the processing operations in relation to the purposes”,
under the Bill, a controller needs to assess only necessity, not proportionality. Instead of
“an assessment of the risks to the rights and freedoms of data subjects”,
under the Bill, a controller does not need to consider rights and freedoms.
As an aside, I note that this conflicts with the proposed amendments to Section 64 of the Data Protection Act 2018 in Clause 20(7)(d), which retains the “rights and freedoms” wording but otherwise mirrors the new downgraded requirements in Clause 20(3)(d). I would be grateful for clarification from the Minister on this point.
Instead of requiring the controller to include information about
“the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned”,
as currently prescribed in Article 35, under the Bill, the controller needs to provide only
“a description of how the controller proposes to mitigate those risks”.
The granularity of what is currently required is replaced by a generalised reference to “a description”. These are not the same bar. My argument throughout Committee is that we need to maintain the bar for processing children’s data.
Lord Harlech (Con)
My Lords, just for clarification, because a number of questions were raised, if the Committee feels that it would like to hear more from the Minister, it can. It is for the mood of the Committee to decide.
Viscount Camrose (Con)
I apologise for going over. I will try to be as quick as possible.
I turn now to the amendments on the new provisions on assessments of high-risk processing in Clause 20. Amendments 87, 88, 89, 91, 92, 93, 94, 95, 97, 98 and 101 seek to reinstate requirements in new Article 35 of the UK GDPR on data protection impact assessments, and, in some areas, make them even more onerous for public authorities. Amendment 90 seeks to reintroduce a list of high-risk processing activities drawn from new Article 35, with a view to help data controllers comply with the new requirements on carrying out assessments of high-risk processing.
Amendment 96, tabled by the noble Baroness, Lady Kidron, seeks to amend Clause 20, so that, where an internet service is likely to be accessed by children, the processing is automatically classed as high risk and the controller must do a children’s data protection impact assessment. Of course, I fully understand why the noble Baroness would like those measures to apply automatically to organisations processing children’s data, and particularly to internet services likely to be accessed by children. It is highly likely that many of the internet services that she is most concerned about will be undertaking high-risk activities, and they would therefore need to undertake a risk assessment.
Under the current provisions in Clause 20, organisations will still have to undertake risk assessments where their processing activities are likely to pose high risks to individuals, but they should have the ability to assess the level of risk based on the specific nature, scale and context of their own processing activities. Data controllers do not need to be directed by government or Parliament about every processing activity that will likely require a risk assessment, but the amendments would reintroduce a level of prescriptiveness that we were seeking to remove.
Clause 20 requires the ICO to publish a list of examples of the types of processing activities that it considers would pose high risks for the purposes of these provisions, which will help controllers to determine whether a risk assessment is needed. This will provide organisations with more contemporary and practical help than a fixed list of examples in primary legislation could. The ICO will be required to publish a document with a list of examples that it considers to be high-risk processing activities, and we fully expect the vulnerability age of data subjects to be a feature of that. The commissioner’s current guidance on data protection impact assessments already describes the use of the personal data of children or other vulnerable individuals for marketing purposes, profiling or offering internet services directly to children as examples of high-risk processing, although the Government cannot of course tell the ICO what to include in its new guidance.
Similarly, in relation to Amendments 99, 100 and 102 from the noble Baroness, Lady Jones, it should not be necessary for this clause to specifically require organisations to consider risks associated with automated decision-making or obligations under equalities legislation. That is because the existing clause already requires controllers to consider any risks to individuals and to describe
“how the controller proposes to mitigate those risks”.
I am being asked to wrap up and so, in the interests of time, I shall write with my remaining comments. I have no doubt that noble Lords are sick of the sound of my voice by now.
Baroness Kidron (CB)
My Lords, I hope that no noble Lord expects me to pull all that together. However, I will mention a couple of things.
With this group, the Minister finally has said all the reasons why everything will be different and less. Those responsible for writing the Minister’s speeches should be more transparent about the Government’s intention, because “organisations are best placed to determine what is high-risk”—not the ICO, not Parliament, not existing data law. Organisations are also for themselves. They are “best placed to decide on their representation”, whether it is here or there and whether it speaks English or not, and they “get to decide whether they have a DPO or a senior responsible individual”. Those are three quotes from the Minister’s speech. If organisations are in charge of the bar of data protection and the definition of data protection, I do believe that this is a weakening of the data protection regime. He also said that organisations are responsible for the quality of their risk assessment. Those are four places in this group alone.
At the beginning, the noble Baroness, Lady Harding, talked about the trust of consumers and citizens. I do not think that this engenders trust. The architecture is so keen to get rid of ways of accessing rights that some organisations may have to have a DPO and a DPIA—a doubling rather than a reducing of burden. Very early on—it feels a long time ago—a number of noble Lords talked about the granular detail. I tried in my own contribution to show how very different it is in detail. So I ask the Minister to reflect on the assertion that you can take out the detail and have the same outcome. All the burden being removed is on one side of the equation, just as we enter into a world in which AI, which is built on people’s data, is coming in the other direction.
I will of course withdraw my amendment, but I believe that Clauses 20, 18 and the other clauses we just discussed are deregulation measures. That should be made clear from the Dispatch Box, and that is a choice that the House will have to make.
Before I sit down, I do want to recognise one thing, which is that the Minister said that he would work alongside us between now and Report; I thank him for that, and I accept that. I also noted that he said that it was a responsibility to take care of children by default. I agree with him; I would like to see that in the Bill. I beg leave to withdraw my amendment.
Baroness Kidron
“(e) a description of how the controller will enforce purpose limitation, and(f) evidence of how individual information rights are enabled at the point of collection and after processing (if subsection (3A) is not routinely applied)”Member's explanatory statement
Large language models are accessing data that includes personal data. There are existing web protocols that can prevent this, but they are little known, difficult to navigate and require an opt out. This amendment and another in my name to Clause 20 would require either proof of legitimate interest, or prior permission from data subjects unless the company routinely give an easily accessible machine readable opt in.
Baroness Kidron (CB)
My Lords, I am somewhat disappointed to be talking to these amendments in the dying hours of our Committee before we take a break because many noble Lords—indeed, many people outside the House—have contacted me about them. I particularly want to record the regret of the noble Lord, Lord Black, who is a signatory to these amendments, that he is unable to be with us today.
The battle between rights-holders and the tech sector is nothing new. Many noble Lords will remember the arrival and demise of file-sharing platform Napster and the subsequent settlement between the sector and the giant creative industries. Napster argued that it was merely providing a platform for users to share files and was not responsible for the actions of its users; the courts sided with the music industry, and Napster was ordered to shut down its operations in 2001. The “mere conduit” argument was debunked two decades ago. To the frustration of many of us, the lawsuits led to a perverse outcome that violent bullying or sexually explicit content would be left up for days, weeks or forever, while a birthday video with the temerity to have music in the background would be deleted almost immediately.
The emergence of the large language models—LLMs—and the desire on the part of LLM developers to scrape the open web to capture as much text, data and images as possible raise some of the same issues. The scale of scraping is, by their own admission, unprecedented, and their hunger for data at any cost in an arms race for AI dominance is publicly acknowledged, setting up a tension between the companies that want the data and data subjects and creative rights holders. A data controller who publishes personal data as part of a news story, for example, may do so on the basis of an exemption under data protection law for journalism, only for that data to be scraped and commingled with other data scraped from the open web to train an LLM.
This raises issues of copyright infringement and, more importantly—whether for individuals, creative communities or businesses that depend on the value of what they produce—these scraping activities happen invisibly. Anonymous bots acting on behalf of AI developers, or conducting a scrape as a potential supplier to AI developers, are scraping websites without notifying data controllers or data subjects. In doing so, they are also silent on whether processes are in place to minimise risks or balance competing interests, as required by current data law.
Amendment 103 would address those risks by requiring documentation and transparency. Proposed new paragraph (e) would require an AI developer to document how the data controller will enforce purpose limitation. This is essential, given that invisible data processing enabled through web scraping can pick up material that is published for a legitimate purpose, such as journalism, but the combination of such information with other data accessed through invisible data processing could change the purpose and application of that data in ways that the individual may wish to object to using their existing data rights. Proposed new paragraph (f) would require a data processor seeking to use legitimate interest as the basis for web scraping and invisible processing to build LLMs to document evidence of how they have ensured that individual information rights have been enabled at the point of collection and after processing.
Together, those proposed new paragraphs would mean that anyone who scrapes web data must be able to show that the data subjects have meaningful control and can access their information rights ahead of processing. These would be mandatory, unless they have incorporated an easily accessible machine-readable protocol on an opt-in basis, which is then the subject of Amendment 104.
Amendment 104 would require web scrapers to establish an easily accessible machine-readable protocol that works on an opt-in basis rather than the current opt-out. Undoubtedly, the words “easily”, “accessible”, “machine readable” and “web protocols” would all benefit from guidance from the ICO but, for the absence of doubt, the intention of the amendment is that a web scraper would proactively notify individuals and website owners that scraping of their data will take place, including stating the identity of the data processor and the purpose for which that data is to be scraped. In addition, the data processor will provide information on how data subjects and data controllers can exercise their information rights to opt out of their data being scraped before any such scraping takes place, with an option to object after the event if taken without permission.
We are in a situation in which not only is IP being taken at scale, potentially impoverishing our very valuable creative industries, journalism and academic work that is then regurgitated inaccurately, but which is making a mockery of individual data rights. In its recent consultation into the lawful basis for web scraping, the ICO determined that use of web-scraped data
“can be feasible if generative AI developers take their legal obligations seriously and can evidence and demonstrate this in practice”.
These amendments would operationalise that demonstration. As it stands, there is routine failure, particularly regarding new models. For example, the ICO’s preliminary enforcement notice against Snap is that its risk assessment for its AI tool was inadequate.
Noble Lords will appreciate the significance of the connection that the ICO draws between innovative technology and children’s personal data, given the heightened data rights and protections that children are afforded under the age-appropriate design code. While I welcome the ICO’s action, holders of intellectual copyright have been left to fend for themselves, since government talks have failed and individual data subjects are left exposed. Whether it is the scraping of social media or work and school websites, these will not be pursued by the ICO because regulating action in such small increments is disproportionate, yet this lack of compliance is happening at scale.
Baroness Kidron (CB)
My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for their support. I will read the Minister’s speech, because this is a somewhat technical matter. I am not entirely sure that I agree with what he said, but I am also not sure that I could disagree with it adequately in the moment.
I will make two general points, however. First, I hear the Minister loud and clear on the question of the Government’s announcement on AI and IP but, at the beginning of my speech, I referenced Napster and how we ended up with personal data. The big guys won the battle for copyright, so we will see the likes of the New York Times, EMI and so on winning this battle, but small creatives and individuals will not be protected. I hope that, when that announcement comes, it includes the personal data issue as well.
Secondly, I say to the Minister that, if it is working now in the way he outlined from the ICO, then I do not think anybody thinks it is working very well. Either the ICO needs to do something, or we need to do something in this Bill. If not, we are letting all our data be taken for free to build the new world with no permission.
I know that the noble Viscount is interested in this area. It is one in which we could be creative. I suggest that we try to solve the conundrum about whether the ICO is not doing its work or we are not doing ours. I beg leave to withdraw my amendment.
Data Protection and Digital Information Bill
Baroness Kidron ExcerptsMonday 25th March 2024
(7 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-III Third marshalled list for Grand Committee - (25 Mar 2024)
Lord Clement-Jones (LD)
My Lords, I rise to speak to my Amendment 11 and to Amendments 14, 16, 17, 18, Clause 5 stand part and Clause 7 stand part. I will attempt to be as brief as I can, but Clause 5 involves rather a large number of issues.
Processing personal data is currently lawful only if it is performed for at least one lawful purpose, one of which is that the processing is for legitimate interests pursued by the controller or a third party, except where those interests are overridden by the interests or fundamental rights of the data subject. As such, if a data controller relies on their legitimate interest as a legal basis for processing data, they must conduct a balancing test of their interest and those of the data subject.
Clause 5 amends the UK GDPR’s legitimate interest provisions by introducing the concept of recognised legitimate interest, which allows data to be processed without a legitimate interest balancing test. This provides businesses and other organisations with a broader scope of justification for data processing. Clause 5 would amend Article 6 of the UK GDPR to equip the Secretary of State with a power to determine these new recognised legitimate interests. Under the proposed amendment, the Secretary of State must have regard to,
“among other things … the interests and fundamental rights and freedoms of data subjects”.
The usual legitimate interest test is much stronger: rather than merely a topic to have regard to, a legitimate interest basis cannot lawfully apply if the data subject’s interests override those of the data controller.
Annexe 1, as inserted by the Bill, now provides a list of exemptions but is overly broad and vague. It includes national security, public security and defence, and emergencies and crime as legitimate interests for data processing without an assessment. Conservative MP, Marcus Fysh, said on Third Reading:
“Before companies share data or use data, they should have to think about what the balance is between a legitimate interest and the data rights, privacy rights and all the other rights that people may have in relation to their data. We do not want to give them a loophole or a way out of having to think about that.” —[Official Report, Commons, 29/11/23; col. 896.]
I entirely agree with that.
The amendment in Clause 5 also provides examples of processing that may be considered legitimate interests under the existing legitimate interest purpose, under Article 6(1)(f), rather than under the new recognised legitimate interest purpose. These include direct marketing, intra-group transmission of personal data for internal administrative purposes, and processing necessary to ensure the security of a network.
The Bill also provides a much more litigious data environment. Currently, an organisation’s assessment of its lawful purposes for processing data can be challenged through correspondence or an ICO complaint, whereas, under the proposed system, an individual may be forced to legally challenge a statutory instrument in order to contest the basis on which their data is processed.
As I will explain later, our preference is that the clause not stand part, but I accept that there are some areas that need clarification and Amendment 11 is designed to do this. The UK GDPR sets out conditions in which processing of data is lawful. The Bill inserts in Article 6(1) a provision specifying that processing shall be lawful for the purposes of a recognised legitimate interest, as I referred to earlier, an example of which may be for the purposes of direct marketing.
Many companies obtain data from the open electoral register. The register is maintained by local authorities, which have the right to sell this data to businesses. Amendment 11 would insert new Article (6)(1)(aa) and (ab), which provide that data processing shall be lawful where individuals have consented for their data
“to enter the public domain via a public body”,
or where processing is carried out by public bodies pursuant to their duties and rights, which may include making such data available to the public. Individuals are free to opt out of the open electoral register if they so wish and it would be disproportionate—in fact, irritating—to consumers to notify those who have consented to their data being processed that their data is being processed.
On Amendment 14, as mentioned, the Bill would give the Secretary of State the power to determine recognised legitimate interests through secondary legislation, which is subject to minimal levels of parliamentary scrutiny. Although the affirmative procedure is required, this does not entail much scrutiny or much of a debate. The last time MPs did not approve a statutory instrument under the affirmative procedure was in 1978. In practice, interests could be added to this list at any time and for any reason, facilitating the flow and use of personal data for limitless potential purposes. Businesses could be obligated to share the public’s personal data with government or law enforcement agencies beyond what they are currently required to do, all based on the Secretary of State’s inclination at the time.
We are concerned that this Henry VIII power is unjustified and undermines the very purpose of data protection legislation, which is to protect the privacy of individuals in a democratic data environment, as it vests undue power over personal data rights in the Executive. This amendment is designed to prevent the Secretary of State from having the ability to pre-authorise data processing outside the usual legally defined route. It is important to avoid a two-tier data protection framework in which the Secretary of State can decide that certain processing is effectively above the law.
On Amendment 17, some of the most common settings where data protection law is broken relate to the sharing of HIV status of an individual living with HIV in their personal life in relation to employment, healthcare services and the police. The sharing of an individual’s HIV status can lead to further discrimination being experienced by people living with HIV and can increase their risk of harassment or even violence. The National AIDS Trust is concerned that the Bill as drafted does not go far enough to prevent individuals’ HIV status from being shared with others without their consent. They and we believe that the Bill must clarify what an “administrative purpose” is for organisations processing employees’ personal data. Amendment 17 would add wording to clarify that, in paragraph 9(b) of Article 6,
“intra-group transmission of personal data”
in the workplace, within an organisation or in a group of organisations should be permitted only for individuals who need to access an employee’s personal data as part of their work.
As far as Amendment 18 is concerned, as it stands Clause 5 gives an advantage to large undertakings with numerous companies that can transmit data intra-group purely because they are affiliated to one central body. However, this contradicts both the ICO’s and the CMA’s repeated position that first party versus third party is not a meaningful distinction to cover privacy risk. Instead, it is the distinction of what data is processed, rather than the corporate ownership of the systems doing the processing. The amendment reflects the organisational measures that undertakings should have as safeguards. The groups of undertakings transmitting data should have organisational measures via contract to be able to take advantage of this transmission of data.
Then we come to the question of Clause 5 standing part of the Bill. This clause is unnecessary and creates risks. It is unnecessary because the legitimate interest balancing test is, in fact, flexible and practical; it already allows processing for emergencies, safeguarding and so on. It is risky because creating lists of specified legitimate interests inevitably narrows this concept and may make controllers less certain about whether a legitimate interest that is not a recognised legitimate interest can be characterised as such. In the age of AI, where change is exponential, we need principles and outcome-based legislation that are flexible and can be supplemented with guidance from an independent regulator, rather than setting up a system that requires the Government to legislate more and faster in order to catch up.
There is also a risk that the drafting of this provision does not dispense with the need to conduct a legitimate interest balancing test because all the recognised legitimate interests contain a test, of necessity. Established case law interprets the concept of necessity under data protection law as requiring a human rights balancing test to be carried out. This rather points to the smoke-and-mirrors effect of this drafting, which does nothing to improve legal certainty for organisations or protections for individuals.
I now come to Clause 7 standing part. This clause creates a presumption that processing will always be in the public interest or substantial public interest if done in reliance on a condition listed in proposed new Schedule A1 to the Data Protection Act 2018. The schedule will list international treaties that have been ratified by the UK. At present, the Bill lists only the UK-US data-sharing agreement as constituting relevant international law. Clause 7 seeks to remove the requirement for a controller to consider whether the legal basis on which they rely is in the public interest or substantial public interest, has appropriate safeguards and respects data subjects’ fundamental rights and freedoms. But the conditions in proposed new Schedule A1 in respect of the UK-US agreement also state that the processing must be necessary, as assessed by the controller, to respond to a request made under the agreement.
It is likely that a court would interpret “necessity” in the light of the ECHR. The court may therefore consider that the inclusion of a necessity test means that a controller would have to consider whether the UK-US agreement, or any other treaty added to the schedule, is proportionate to a legitimate aim pursued. Not only is it unreasonable to expect a controller to do such an assessment; it is also highly unusual. International treaties are drafted on a state-to-state basis and not in a way that necessarily corresponds clearly with domestic law. Further, domestic courts would normally consider the rights under the domestic law implementing a treaty, rather than having to interpret an international instrument without reference to a domestic implementing scheme. Being required to do so may make it more difficult for courts to enforce data subjects’ rights.
The Government have not really explained why it is necessary to amend the law in this way rather than simply implementing the UK-US agreement domestically. That would be the normal approach; it would remove the need to add this new legal basis and enable controllers to use the existing framework to identify a legal basis to process data in domestic law. Instead, this amendment makes it more difficult to understand how the law operates, which could in turn deter data sharing in important situations. Perhaps the Minister could explain why Clause 7 is there.
I beg to move.
Baroness Kidron (CB)
My Lords, I rise to speak to Amendments 13 and 15. Before I do, let me say that I strongly support the comments of the noble Lord, Lord Clement-Jones, about HIV and the related vulnerability, and his assertion—almost—that Clause 5 is a solution in search of a problem. “Legitimate interest” is a flexible concept and I am somewhat bewildered as to why the Government are seeking to create change where none is needed. In this context, it follows that, were the noble Lord successful in his argument that Clause 5 should not stand part, Amendments 13 and 15 would be unnecessary.
On the first day in Committee, we debated a smaller group of amendments that sought to establish the principle that nothing in the Bill should lessen the privacy protections of children. In his response, the Minister said:
“if over the course of our deliberations the Committee identifies areas of the Bill where that is not the case, we will absolutely be open to listening on that, but let me state this clearly: the intent is to at least maintain, if not enhance, the safety and privacy of children and their data”.—[Official Report, 20/3/24; col. GC 75.]
I am glad the Minister is open to listening and that the Government’s intention is to protect children, but, as discussed previously, widening the definition of “research” in Clause 3 and watering down purpose limitation protections in Clause 6 negatively impacts children’s data rights. Again, in Clause 5, lowering the protections for all data subjects has consequences for children.
Viscount Camrose (Con)
Indeed. Needless to say, we take the recommendations of the DPRRC very seriously, as they deserve. However, because this is an exhaustive list, and because the technologies and practices around data are likely to evolve very rapidly in ways we are unable currently to predict, it is important to retain as a safety measure the ability to update that list. That is the position the Government are coming from. We will obviously continue to consider the DPRRC’s recommendations, but that has to come with a certain amount of adaptiveness as we go. Any addition to the list would of course be subject to parliamentary debate, via the affirmative resolution procedure, as well as the safeguards listed in the provision itself.
Clause 50 ensures that the ICO and any other interested persons should be consulted before making regulations.
Amendments 15, 16, 17 and 18 would amend the part of Clause 5 that is concerned with the types of activities that might be carried out under the current legitimate interest lawful ground, under Article 6(1)(f). Amendment 15 would prevent direct marketing organisations relying on the legitimate interest lawful ground under Article 6(1)(f) if the personal data being processed related to children. However, the age and vulnerability in general of data subjects is already an important factor for direct marketing organisations when considering whether the processing is justified. The ICO already provides specific guidance for controllers carrying out this balancing test in relation to children’s data. The fact that a data subject is a child, and the age of the child in question, will still be relevant factors to take into account in this process. For these reasons, the Government consider this amendment unnecessary.
Baroness Kidron (CB)
My Lords, am I to take it from that that none of the changes currently in the Bill will expose children on a routine basis to direct marketing?
Viscount Camrose (Con)
As is the case today and will be going forward, direct marketing organisations will be required to perform the balancing test; and as in the ICO guidance today and, no doubt, going forward—
Baroness Kidron (CB)
I am sorry if I am a little confused—I may well be—but the balancing test that is no longer going to be there allows a certain level of processing, which was the subject of the first amendment. The suggestion now is that children will be protected by a balancing test. I would love to know where that balancing test exists.
Viscount Camrose (Con)
The balancing test remains there for legitimate interests, under Article 6(1)(f).
Amendment 16 seeks to prevent organisations that undertake third-party marketing relying on the legitimate interest lawful ground under Article 6(1)(f) of the UK GDPR. As I have set out, organisations can rely on that ground for processing personal data without consent when they are satisfied that they have a legitimate interest to do so and that their commercial interests are not outweighed by the rights and interests of data subjects.
Clause 5(4) inserts in Article 6 new paragraph (9), which provides some illustrative examples of activities that may constitute legitimate interests, including direct marketing activities, but it does not mean that they will necessarily be able to process personal data for that purpose. Organisations will need to assess on a case-by-case basis where the balance of interest lies. If the impact on the individual’s privacy is too great, they will not be able to rely on the legitimate interest lawful ground. I should emphasise that this is not a new concept created by this Bill. Indeed, the provisions inserted by Clause 5(4) are drawn directly from the recitals to the UK GDPR, as incorporated from the EU GDPR.
I recognise that direct marketing can be a sensitive—indeed, disagreeable—issue for some, but direct marketing information can be very important for businesses as well as individuals and can be dealt with in a way that respects people’s privacy. The provisions in this Bill do not change the fact that direct marketing activities must be compliant with the data protection and privacy legislation and continue to respect the data subject’s absolute right to opt out of receiving direct marketing communications.
Amendment 17 would make sure that the processing of employee data for “internal administrative purposes” is subject to heightened safeguards, particularly when it relates to health. I understand that this amendment relates to representations made by the National AIDS Trust concerning the level of protection afforded to employees’ health data. We agree that the protection of people’s HIV status is vital and that it is right that it is subject to extra protection, as is the case for all health data and special category data. We have committed to further engagement and to working with the National AIDS Trust to explore solutions in order to prevent data breaches of people’s HIV status, which we feel is best achieved through non-legislative means given the continued high data protection standards afforded by our existing legislation. As such, I hope that the noble Lord, Lord Clement-Jones, will agree not to press this amendment.
Amendment 18 seeks to allow businesses more confidently to rely on the existing legitimate interest lawful ground for the transmission of personal data within a group of businesses affiliated by contract for internal administrative purposes. In Clause 5, the list of activities in proposed new paragraphs (9) and (10) are intended to be illustrative of the types of activities that may be legitimate interests for the purposes of Article 6(1)(f). They are focused on processing activities that are currently listed in the recitals to the EU GDPR but are simply examples. Many other processing activities may be legitimate interests for the purposes of Article 6(1)(f) of the UK GDPR. It is possible that the transmission of personal data for internal administrative purposes within a group affiliated by contract may constitute a legitimate interest, as may many other commercial activities. It would be for the controller to determine this on a case-by-case basis after carrying out a balancing test to assess the impact on the individual.
Finally, I turn to the clause stand part debate that seeks to remove Clause 7 from the Bill. I am grateful to the noble Lord, Lord Clement-Jones, for this amendment because it allows me to explain why this clause is important to the success of the UK-US data access agreement. As noble Lords will know, that agreement helps the law enforcement agencies in both countries tackle crime. Under the UK GDPR, data controllers can process personal data without consent on public interest grounds if the basis for the processing is set out in domestic law. Clause 7 makes it clear that the processing of personal data can also be carried out on public interest grounds if the basis for the processing is set out in a relevant international treaty such as the UK-US data access agreement.
The agreement permits telecommunications operators in the UK to disclose data about serious crimes with law enforcement agencies in the US, and vice versa. The DAA has been operational since October 2022 and disclosures made by UK organisations under it are already lawful under the UK GDPR. Recent ICO guidance confirms this, but the Government want to remove any doubt in the minds of UK data controllers that disclosures under the DAA are permitted by the UK GDPR. Clause 7 makes it absolutely clear to telecoms operators in the UK that disclosures under the DAA can be made in reliance on the UK GDPR’s public tasks processing grounds; the clause therefore contributes to the continued, effective functioning of the agreement and to keeping the public in both the UK and the US safe.
For these reasons, I hope that the noble Lord, Lord Clement-Jones, will agree to withdraw his amendment.
Lord Clement-Jones (LD)
My Lords, this whole area of democratic engagement is one that the Minister will need to explain in some detail. This is an Alice in Wonderland schedule: “These words mean what I want them to mean”. If, for instance, you are engaging with the children of a voter—at 14, they are children—is that democratic engagement? You could drive a coach and horses through Schedule 1. The Minister used the word “necessary”, but he must give us rather more than that. It was not very reassuring.
Baroness Kidron (CB)
The Minister mentioned a presumption that the ICO will update its guidance. Is there a timeframe for that? Will the guidance be updated before this comes into effect? How does the age of 14 relate to the AADC, which sets the age of adulthood at 18?
Baroness Bennett of Manor Castle (GP)
Before the Minister replies, we may as well do the full round. I agree with him, in that I very much believe in votes at 16 and possibly younger. I have been on many a climate demonstration with young people of 14 and under, so they can be involved, but the issue here is bigger than age. The main issue is not age but whether anybody should be subjected to a potential barrage of material in which they have not in any way expressed an interest. I am keen to make sure that this debate is not diverted to the age question and that we do not lose the bigger issue. I wanted to say that I sort of agree with the Minister on one element.
Viscount Camrose (Con)
A fair number of points were made there. I will look at ages under 16 and see what further steps, in addition to being necessary and proportionate, we can think about to provide some reassurance. Guidance would need to be in effect before any of this is acted on by any of the political parties. I and my fellow Ministers will continue to work with the ICO—
Baroness Kidron (CB)
I am sorry to press the Minister, but does the Bill state that guidance will be in place before this comes into effect?
Viscount Camrose (Con)
I am not sure whether it is written in the Bill. I will check, but the Bill would not function without the existence of the guidance.
Viscount Camrose (Con)
Indeed. I will make absolutely sure that we provide a full answer. By the way, I sincerely thank the noble Lord for taking the time to go through what is perhaps not the most rewarding of reads but is useful none the less.
Baroness Kidron (CB)
On the question of the ICO being responsible to Parliament, in the then Online Safety Bill and the digital markets Bill we consistently asked for regulators to be directly responsible to Parliament. If that is something the Government believe they are, we would like to see an expression of it.
Viscount Camrose (Con)
I would be happy to provide such an expression. I will be astonished if that is not the subject of a later group of amendments. I have not yet prepared for that group, I am afraid, but yes, that is the intention.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Bassam, who has already set out very clearly what the group is about. I will chiefly confine myself to speaking to my Amendment 38A, which seeks to put in the Bill a clear idea of what having a human in the loop actually means. We need to have a human in the loop to ensure that a human interpreted, assessed and, perhaps most crucially, was able to intervene in the decision and any information on which it is based.
Noble Lords will be aware of many situations that have already arisen in which artificial intelligence is used—I would say that what we are currently describing is artificial intelligence but, in real terms, it is not truly that at all. What we have is a very large use of big data and, as the noble Lord, Lord Bassam, said, big data can be a very useful and powerful tool to be used for many positive purposes. However, we know that the quality of decision-making often depends on the quality of the data going in. A human is able to see whether something looks astray or wrong; there is a kind of intelligence that humans apply to this, which machines simply do not have the capacity for.
I pay credit to Justice, the law reform and human rights organisation which produced an excellent briefing on the issues around Clause 14. It asserts that, as it is currently written, it inadequately protects individuals from automated harm.
The noble Lord, Lord Bassam, referred to the Horizon case in the UK; that is the obvious example but, while we may think of some of the most vulnerable people in the UK, the Robodebt case in Australia is another case where crunching big data, and then crunching down on individuals, had truly awful outcomes. We know that there is a real risk of unfairness and discrimination in the use of these kinds of tools. I note that the UK has signed the Bletchley declaration, which says that
“AI should be designed, developed, deployed, and used, in a manner that is … human-centric, trustworthy and responsible”.
I focus particularly on “human-centric”: human beings can sympathise with and understand other human beings in a way that big data simply does not.
I draw a parallel with something covered by a special Select Committee of your Lordships’ House, last year: lethal autonomous weapon systems, or so-called killer robots. This is an obvious example of where there is a very strong argument for having a human in the loop, as the terminology goes. From the last I understood and heard about this, I am afraid that the UK Government are not fully committed to a human in the loop in the case of killer robots, but I hope that we get to that point.
When we talk about how humans’ data is used and managed, we are also talking about situations that are—almost equally—life and death: whether people get a benefit, whether they are fairly treated and whether they do not suddenly disappear off the system. Only this morning, I was reading a case study of a woman aged over 80, highlighting how she had been through multiple government departments, but could not get her national insurance number. Without a national insurance number, she could not get the pension to which she was entitled. If there is no human in the loop to cut through those kinds of situations, there is a real risk that people will find themselves just going around and around machines—a circumstance with which we are personally all too familiar, I am sure. My amendment is an attempt to put a real explanation in the Bill for having that human in the loop.
Baroness Kidron (CB)
My Lords, the number of amendments proposed to Clause 14 reflects the Committee’s very real concern about the impact of automated decision-making on the privacy, safety and prospects of UK data subjects. I have specific amendments in groups 7 and 8, so I will speak to the impact of Clause 14 on children later. I will again be making arguments about the vulnerability of these systems in relation to the Government’s proposals on the DWP.
Without repeating the arguments made, I associate myself with most the proposals and the intention behind them—the need to safeguard the prospects of a fair outcome when algorithms hold sway over a person’s future. It seems entirely logical that, if the definition of solely automated decision-making requires “no meaningful human involvement”, we should be clear, as Amendment 40 proposes, about what is considered “meaningful”, so that the system cannot be gamed by providing human involvement that provides an ineffective safeguard and is therefore not meaningful.
I have sympathy with many of these amendments—Amendments 38A, 39, 47, 62, 64 and 109—and ultimately believe, as was suggested by the noble Lord, Lord Bassam, that it is a matter of trust. I refer briefly to the parliamentary briefing from the BMA, which boldly says that:
“Clause 14 risks eroding trust in AI”.
That would be a very sad outcome.
Lord Clement-Jones (LD)
My Lords, we have heard some powerful concerns on this group already. This clause is in one of the most significant parts of the Bill for the future. The Government’s AI policy is of long standing. They started it many years ago, then had a National AI Strategy in 2021, followed by a road map, a White Paper and a consultation response to the White Paper. Yet this part of the Bill, which is overtly about artificial intelligence and automated decision-making, does not seem to be woven into their thinking at all.
Baroness Kidron (CB)
My Lords, the amendments in this group highlight that Clause 14 lacks the necessary checks and balances to uphold equality legislation, individual rights and freedoms, data protection rights, access to services, fairness in the exercise of public functions and workers’ rights. I add my voice to that of the noble Lord, Lord Clement-Jones, in his attempt to make Clause 14 not stand part, which he will speak to in the next group.
I note, as the noble Lord, Lord Bassam, has, that all the current frameworks have fundamental rights at their heart, whether it is the White House blueprint, the UN Secretary-General’s advisory body on AI, with which I am currently involved, or the EU’s AI Act. I am concerned that the UK does not want to work within this consensus.
With that in mind, I particularly note the importance of Amendment 41. As the noble Lord said, we are all supposed to adhere to the Equality Act 2010. I support Amendments 48 and 49, which are virtually inter-changeable in wanting to ensure that the standard of decisions being “solely” based on automated decision-making cannot be gamed by adding a trivial human element to avoid that designation.
Again, I suggest that the Government cannot have it both ways—with nothing diminished but everything liberated and changed—so I find myself in agreement with Amendment 52A and Amendment 59A, which is in the next group, from the noble Lord, Lord Holmes, who is not in his place. These seek clarity from the Information Commissioner.
I turn to my Amendment 46. My sole concern is to minimise the impact of Clause 14 on children’s safety, privacy and life chances. The amendment provides that a significant decision about a data subject must not be based solely on automated processing if
“the data subject is a child or may be a child unless the provider is satisfied that the decision is in, and compatible with, the best interests of a child”,
taking into account the full gamut of their rights and development stage. Children have enhanced rights under the UNCRC, to which the UK is a signatory. Due to their evolving capacities as they make the journey from infancy to adulthood, they need special protections. If their rights are diminished in the digital world, their rights are diminished full stop. Algorithms determine almost every aspect of a child’s digital experience, from the videos they watch to their social network and from the sums they are asked to do in their maths homework to the team they are assigned when gaming. We have seen young boys wrongly profiled as criminal and girls wrongly associated with gangs.
In a later group, I will speak to a proposal for a code of practice on children and AI, which would codify standards and expectations for the use of AI in all aspects of children’s lives, but for now, I hope the Minister will see that, without these amendments to automated decision-making, children’s data protection will be clearly weakened. I hope he will agree to act to make true his earlier assertion that nothing in the Bill will undermine child protection. The Minister is the Minister for AI. He knows the impact this will have. I understand that, right now, he will probably stick to the brief, but I ask him to go away, consider this from the perspective of children and parents, and ask, “Is it okay for children’s life chances to be automated in this fashion?”
Lord Clement-Jones (LD)
My Lords, I will speak to my Amendment 48. By some quirk of fate, I failed to sign up to the amendments that the noble Lord, Lord Bassam, so cogently introduced. I would have signed up if I had realised that I had not, so to speak.
It is a pleasure to follow the noble Baroness, Lady Kidron. She has a track record of being extremely persuasive, so I hope the Minister pays heed in what happens between Committee and Report. I very much hope that there will be some room for manoeuvre and that there is not just permanent push-back, with the Minister saying that everything is about clarifying and us saying that everything is about dilution. There comes a point when we have to find some accommodation on some of these areas.
Amendments 48 and 49 are very similar—I was going to say, “Great minds think alike”, but I am not sure that my brain feels like much of a great mind at the moment. “Partly” or “predominantly” rather than “solely”, if you look at it the other way round, is really the crux of what I think many of us are concerned about. It is easy to avoid the terms of Article 22 just by slipping in some sort of token human involvement. Defining “meaningful” is so difficult in these circumstances. I am concerned that we are opening the door to something that could be avoided. Even then, the terms of the new clause—we will have a clause stand part debate on Wednesday, obviously—put all the onus on the data subject, whereas that was not the case previously under Article 22. The Minister has not really explained why that change has been made.
I conclude by saying that I very much support Amendment 41. This whole suite of amendments is well drafted. The point about the Equality Act is extremely well made. The noble Lord, Lord Holmes, also has a very good amendment here. It seems to me that involving the ICO right in the middle of this will be absolutely crucial—and we are back to public trust again. If nothing else, I would like explicitly to include that under Clause 14 in relation to Article 22 by the time this Bill goes through.
Baroness Kidron (CB)
Can the Minister give me an indication of the level at which that kicks in? For example, say there is a child in a classroom and a decision has been made about their ability in a particular subject. Is it automatic that the parent and the child get some sort of read-out on that? I would be curious to know where the Government feel that possibility starts.
Viscount Camrose (Con)
In that example, where a child was subject to a solely ADM decision, the school would be required to inform the child of the decision and the reasons behind it. The child and their parent would have the right to seek a human review of the decision.
Baroness Kidron (CB)
We may come on to this when we get to edtech but a lot of those decisions are happening automatically right now, without any kind of review. I am curious as to why it is on the school whereas the person actually doing the processing may well be a technology company.
Artificial Intelligence (Regulation) Bill [HL]
Baroness Kidron ExcerptsFriday 22nd March 2024
(7 months, 1 week ago)
Lords ChamberRead Full debate Artificial Intelligence (Regulation) Bill [HL] 2023-24 View all Artificial Intelligence (Regulation) Bill [HL] 2023-24 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Baroness Kidron (CB)
My Lords, I too congratulate the noble Lord, Lord Holmes, on his wonderful speech. I declare my interests as an adviser to the Oxford Institute for Ethics in AI and the UN Secretary-General’s AI Advisory Body.
When I read the Bill, I asked myself three questions. Do we need an AI regulation Bill? Is this the Bill we need? What happens if we do not have a Bill? It is arguable that it would be better to deal with AI sector by sector—in education, the delivery of public services, defence, media, justice and so on—but that would require an enormous legislative push. Like others, I note that we are in the middle of a legislative push, with digital markets legislation, media legislation, data protection legislation and online harms legislation, all of which resolutely ignore both existing and future risk.
The taxpayer has been asked to make a £100 million investment in launching the world’s first AI safety institute, but as the Ada Lovelace Institute says:
“We are concerned that the Government’s approach to AI regulation is ‘all eyes, no hands’”,
with plenty of “horizon scanning” but no
“powers and resources to prevent those risks or even to react to them effectively after the fact”.
So yes, we need an AI regulation Bill.
Is this the Bill we need? Perhaps I should say to the House that I am a fan of the Bill. It covers testing and sandboxes, it considers what the public want, and it deals with a very important specific issue that I have raised a number of times in the House, in the form of creating AI-responsible officers. On that point, the CEO of the International Association of Privacy Professionals came to see me recently and made an enormously compelling case that, globally, we need hundreds of thousands of AI professionals, as the systems become smarter and more ubiquitous, and that those professionals will need standards and norms within which to work. He also made the case that the UK would be very well-placed to create those professionals at scale.
I have a couple of additions. Unless the Minister is going to make a surprise announcement, I think we are allowed to consider that he is going to take the Bill on in full. In addition, under Clause 2, which sets out regulatory principles, I would like to see consideration of children’s rights and development needs; employment rights, concerning both management by AI and job displacement; a public interest case; and more clarity that material that is an offence—such as creating viruses, CSAM or inciting violence—is also an offence, whether created by AI or not, with specific responsibilities that accrue to users, developers and distributors.
The Stanford Internet Observatory recently identified hundreds of known images of child sexual abuse material in an open dataset used to train popular AI text-to-image models, saying:
“It is challenging to clean or stop the distribution of publicly distributed datasets as it has been widely disseminated. Future datasets could use freely available detection tools to prevent the collection of known CSAM”.
The report illustrates that it is very possible to remove such images, but that it did not bother, and now those images are proliferating at scale.
We need to have rules upon which AI is developed. It is poised to transform healthcare, both diagnosis and treatment. It will take the weight out of some of the public services we can no longer afford, and it will release money to make life better for many. However, it brings forward a range of dangers, from fake images to lethal autonomous weapons and deliberate pandemics. AI is not a case of good or bad; it is a question of uses and abuses.
I recently hosted Geoffrey Hinton, whom many will know as the “godfather of AI”. His address to parliamentarians was as chilling as it was compelling, and he put timescales on the outcomes that leave no time to wait. I will not stray into his points about the nature of human intelligence, but he was utterly clear that the concentration of power, the asymmetry of benefit and the control over resources—energy, water and hardware—needed to run these powerful systems would be, if left until later, in so few hands that they, and not we, would be doing the rule setting.
My final question is: if we have no AI Bill, can the Government please consider putting the content of the AI regulation Bill into the data Bill currently passing through Parliament and deal with it in that way?
Data Protection and Digital Information Bill
Baroness Kidron ExcerptsWednesday 20th March 2024
(7 months, 2 weeks 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-I(b) Amendments for Grand Committee (Supplementary to the Marshalled List) - (20 Mar 2024)
Baroness Kidron
Member's explanatory statement
This amendment, and another to Clause 1 in the name of Baroness Kidron, would ensure that controllers have a duty to identify when a user is or may be a child to give them the data protection codified by the Data Protection Act 2018.
Baroness Kidron (CB)
My Lords, I speak to Amendments 2, 3, 9 and 290 in my name. I thank the noble Baronesses, Lady Jones and Lady Harding, and the noble Lord, Lord Clement-Jones, for their support.
This group seeks to secure the principle that children should enjoy the same protections in UK law after this Bill passes into law as they do now. In 2018, this House played a critical role in codifying the principle that children merit special, specific protection in relation to data privacy by introducing the age-appropriate design code into the DPA. Its introduction created a wave of design changes to tech products: Google introduced safe search as its default; Instagram made it harder for adults to contact children via private messaging; Play Store stopped making adult apps available to under-18s; and TikTok stopped sending notifications through the night and hundreds of thousands of underage children were denied access to age-inappropriate services. These are just a handful of the hundreds of changes that have been made, many of them rolled out globally. The AADC served as a blueprint for children’s data privacy, and its provisions have been mirrored around the globe. Many noble Lords will have noticed that, only two weeks ago, Australia announced that it is going to follow the many others who have incorporated or are currently incorporating it into their domestic legislation, saying in the press release that it would align as closely as possible with the UK’s AADC.
As constructed in the Data Protection Act 2018, the AADC sets out the requirements of the UK GDPR as they relate to children. The code is indirectly enforceable; that is to say that the action the ICO can take against those failing to comply is based on the underlying provisions of UK GDPR, which means that any watering down, softening of provisions, unstable definitions—my new favourite—or legal uncertainty created by the Bill automatically waters down, softens and creates legal uncertainty and unstable definitions for children and therefore for child protection. I use the phrase “child protection” deliberately because the most important contribution that the AADC has made at the global level was the understanding that online privacy and safety are interwoven.
Clause 1(2) creates an obligation on the controller or processor to know, or reasonably to know, that an individual is an identifiable living individual. Amendments 2 and 3 would add a further requirement to consider whether that living individual is a child. This would ensure that providers cannot wilfully ignore the presence of children, something that tech companies have a long track record of doing. I want to quote the UK Information Commissioner, who fined TikTok £12.7 million for failing to prevent under-13s accessing that service; he said:
“There are laws in place to make sure our children are as safe in the digital world as they are in the physical world. TikTok did not abide by those laws … TikTok should have known better. TikTok should have done better … They did not do enough to check who was using their platform”.
I underline very clearly that these amendments would not introduce any requirement for age assurance. The ICO’s guidance on age assurance in the AADC and the provisions in the Online Safety Act already detail those requirements. The amendments simply confirm the need to offer a child a high bar of data privacy or, if you do not know which of your users are children, offer all users that same high bar of data privacy.
As we have just heard, it is His Majesty’s Government’s stated position that nothing in the Bill lessens children’s data privacy because nothing in the Bill lessens UK GDPR, and that the Bill is merely an exercise to reduce unnecessary bureaucracy. The noble Lords who spoke on the first group have perhaps put paid to that and I imagine that this position will be sorely tested during Committee. In the light of the alternative view that the protections afforded to children’s personal data will decline as a result of the Bill, Amendment 9 proposes that the status of children’s personal data be elevated to that of “sensitive personal data”, or special category data. The threshold for processing special category data is higher than for general personal data and the specific conditions include, for example, processing with the express consent of the data subject, processing to pursue a vital interest, processing by not-for-profits or processing for legal claims or matters of substantial public interest. Bringing children’s personal data within that definition would elevate the protections by creating an additional threshold for processing.
Finally, Amendment 290 enshrines the principle that nothing in the Bill should lead to a diminution in existing levels of privacy protections that children currently enjoy. It is essentially a codification of the commitment made by the Minister in the other place:
“The Bill maintains the high standards of data protection that our citizens expect and organisations will still have to abide by our age-appropriate design code”.—[Official Report, Commons, 17/4/23; col. 101.]
Before I sit down, I just want to highlight the Harvard Gazette, which looked at ad revenue from the perspective of children. On Instagram, children account for 16% of ad revenue; on YouTube, 27%; on TikTok, 35%; and on Snap, an extraordinary 41.4%. Collectively, YouTube, Instagram and Facebook made nearly $2 billion from children aged nought to 12, and it will not escape many noble Lords that children aged nought to 12 are not supposed to be on those platforms. Instagram, YouTube and TikTok together made more than $7 billion from 13 to 17 year-olds. The amendments in this group give a modicum of protection to a demographic who have no electoral capital, who are not developmentally adult and whose lack of care is not an unfortunate by-product of the business model, but who have their data routinely extracted, sold, shared and scraped as a significant part of the ad market. It is this that determines the features that deliberately spread, polarise and keep children compulsively online, and it is this that the AADC—born in your Lordships’ House—started a global movement to contain.
This House came together on an extraordinary cross-party basis to ensure that the Online Safety Bill delivered for children, so I say to the Minister: I am not wedded to my drafting, nor to the approach that I have taken to maintain, clause by clause, the bar for children, even when that bar is changed for adults, but I am wedded to holding the tech sector accountable for children’s privacy, safety and well-being. It is my hope and—if I dare—expectation that noble Lords will join me in making sure that the DPDI Bill does not leave this House with a single diminution of data protection for children. To do so is, in effect, to give with one hand and take away with the other.
I hope that during Committee the Minister will come to accept that children’s privacy will be undermined by the Bill, and that he will work with me and others to resolve these issues so that the UK maintains its place as a global leader in children’s privacy and safety. I beg to move.
Viscount Camrose (Con)
Okay. The Government feel that, in terms of the efficient and effective drafting of the Bill, that paragraph diminishes the clarity by being duplicative rather than adding to it by making a declaration. For the same reason, we have chosen not to make a series of declarations about other intentions of the Bill overall in the belief that the Bill’s intent and outcome are protected without such a statement.
Baroness Kidron (CB)
My Lords, before our break, the noble Baroness, Lady Harding, said that this is hard-fought ground; I hope the Minister understands from the number of questions he has just received during his response that it will continue to be hard-fought ground.
I really regret having to say this at such an early stage on the Bill, but I think that some of what the Minister said was quite disingenuous. We will get to it in other parts of the Bill, but the thing that we have all agreed to disagree on at this point is the statement that the Bill maintains data privacy for everyone in the UK. That is a point of contention between noble Lords and the Minister. I absolutely accept and understand that we will come to a collective view on it in Committee. However, the Minister appeared to suggest—I ask him to correct me if I have got this wrong—that the changes on legitimate interest and purpose limitation are child safety measures because some people are saying that they are deterred from sharing data for child protection reasons. I have to tell him that they are not couched or formed like that; they are general-purpose shifts. There is absolutely no question but that the Government could have made specific changes for child protection, put them in the Bill and made them absolutely clear. I find that very worrying.
I also find it worrying, I am afraid—this is perhaps where we are heading and the thing that many organisations are worried about—that bundling the AADC in with the Online Safety Act and saying, “I’ve got it over here so you don’t need it over there” is not the same as maintaining the protections for children from a high level of data. It is not the same set of things. I specifically said that this was not an age-verification measure and would not require it; whatever response there was on that was therefore unnecessary because I made that quite clear in my remarks. The Committee can understand that, in order to set a high bar of data protection, you must either identify a child or give it to everyone. Those are your choices. You do not have to verify.
I will withdraw the amendment, but I must say that the Government may not have it both ways. The Bill cannot be different or necessary and at the same time do nothing. The piece that I want to leave with the Committee is that it is the underlying provisions that allow the ICO to take action on the age-appropriate design code. It does not matter what is in the code; if the underlying provisions change, so does the code. During Committee, I expect that there will be a report on the changes that have happened all around the world as a result of the code, and we will be able to measure whether the new Bill would be able to create those same changes. With that, I beg leave to withdraw my amendment.
Baroness Kidron (CB)
My Lords, I speak to Amendments 8, 21, 23 and 145 in my name and thank the other noble Lords who have added their names to them. In the interests of brevity, and as the noble Lord, Lord Clement-Jones, has done some of the heavy lifting on this, I will talk first to Amendment 8.
The definition of scientific research has been expanded to include commercial and non-commercial activity, so far as it
“can reasonably be described as scientific”,
but “scientific” is not defined. As the noble Lord said, there is no public interest requirement, so a commercial company can, in reality, develop almost any kind of product on the basis that it may have a scientific purpose, even—or maybe especially—if it measures your propensity to impulse buy or other commercial things. The spectre of scientific inquiry is almost infinite. Amendment 8 would exclude children simply by adding proposed new paragraph (e), which says that
“the data subject is not a child or could or should be known to be a child”,
so that their personal data cannot be used for scientific research purposes to which they have not given their consent.
I want to be clear that I am pro-research and understand the critical role that data plays in enabling us to understand societal challenges and innovate towards solutions. Indeed, I have signed the amendment in the name of the noble Lord, Lord Bethell, which would guarantee access to data for academic researchers working on matters of public interest. Some noble Lords may have been here last night, when the US Surgeon- General Vice Admiral Dr Murthy, who gave the Lord Speaker’s lecture, made a fierce argument in favour of independent public interest research, not knowing that such a proposal has been laid. I hope that, when we come to group 17, the Government heed his wise words.
In the meantime, Clause 3 simply embeds the inequality of arms between academics and corporates and extends it, making it much easier for commercial companies to use personal data for research while academics continue to be held to much higher ethical and professional standards. They continue to require express consent, DBS checks and complex ethical requirements. Not doing so, simply using personal data for research, is unethical and commercial players can rely on Clause 3 to process data without consent, in pursuit of profit. Like the noble Lord, Lord Clement-Jones, I would prefer an overall solution to this but, in its absence, this amendment would protect data from being commoditised in this way.
Amendments 21 and 23 would specifically protect children from changes to Clause 6. I have spoken on this a little already, but I would like it on the record that I am absolutely in favour of a safeguarding exemption. The additional purposes, which are compatible with but go beyond the original purpose, are not a safeguarding measure. Amendment 21 would amend the list of factors that a data controller must take into account to include the fact that children are entitled to a higher standard of protection.
Amendment 23 would not be necessary if Amendment 22 were agreed. It would commit the Secretary of State to ensuring that, when exercising their power under new Article 8A, as inserted by Clause 6(5), to add, vary or omit provisions of Annex 2, they take the 2018 Act and children’s data protection into account.
Finally, Amendment 145 proposes a code of practice on the use of children’s data in scientific research. This code would, in contrast, ensure that all researchers, commercial or in the public interest, are held to the same high standards by developing detailed guidance on the use of children’s data for research purposes. A burning question for researchers is how to properly research children’s experience, particularly regarding the harms defined by the Online Safety Act.
Proposed new subsection (1) sets out the broad headings that the ICO must cover to promote good practice. Proposed new subsection (2) confirms that the ICO must have regard to children’s rights under the UNCRC, and that they are entitled to a higher standard of protection. It would also ensure that the ICO consulted with academics, those who represent the interests of children and data scientists. There is something of a theme here: if the changes to UK GDPR did not diminish data subjects’ privacy and rights, there would be no need for amendments in this group. If there were a code for independent public research, as is so sorely needed, the substance of Amendment 145 could usefully form a part. If commercial companies can extend scientific research that has no definition, and if the Bill expands the right to further processing and the Secretary of State can unilaterally change the basis for onward processing, can the Minister explain, when he responds, how he can claim that the Bill maintains protections for children?
Baroness Harding of Winscombe (Con)
My Lords, I will be brief because I associate myself with everything that the noble Baroness, Lady Kidron, just said. This is where the rubber hits the road from our previous group. If we all believe that it is important to maintain children’s protection, I hope that my noble friend the Minister will be able to accept if not the exact wording of the children-specific amendments in this group then the direction of travel—and I hope that he will commit to coming back and working with us to make sure that we can get wording into the Bill.
I am hugely in favour of research in the private sector as well as in universities and the public sector; we should not close our minds to that at all. We need to be realistic that all the meaningful research in AI is currently happening in the private sector, so I do not want to close that door at all, but I am extremely uncomfortable with a Secretary of State having the ability to amend access to personal data for children in this context. It is entirely sensible to have a defined code of conduct for the use of children’s data in research. We have real evidence that a code of conduct setting out how to protect children’s rights and data in this space works, so I do not understand why it would not be a good idea to do research if we want the research to happen but we want children’s rights to be protected at a much higher level.
It seems to me that this group is self-evidently sensible, in particular Amendments 8, 22, 23 and 145. I put my name to all of them except Amendment 22 but, the more I look at the Bill, the more uncomfortable I get with it; I wish I had put my name to Amendment 22. We have discussed Secretary of State powers in each of the digital Bills that we have looked at and we know about the power that big tech has to lobby. It is not fair on Secretaries of State in future to have this ability to amend—it is extremely dangerous. I express my support for Amendment 22.
Viscount Camrose (Con)
Researchers must also comply with the required safeguards to protect individuals’ privacy. All organisations conducting scientific research, including those with commercial interests, must also meet all the safeguards for research laid out in the UK GDPR and comply with the legislation’s core principles, such as fairness and transparency. Clause 26 sets out several safeguards that research organisations must comply with when processing personal data for research purposes. The ICO will update its non-statutory guidance to reflect many of the changes introduced by this Bill.
Scientific research currently holds a privileged place in the data protection framework because, by its nature, it is already viewed as generally being in the public interest. As has been observed, the Bill already applies a public interest test to processing for the purpose of public health studies in order to provide greater assurance for research that is particularly sensitive. Again, this reflects recital 159.
In response to the noble Baroness, Lady Jones, on why public health research is being singled out, as she stated, this part of the legislation just adds an additional safeguard to studies into public health ensuring that they must be in the public interest. This does not limit the scope for other research unrelated to public health. Studies in the area of public health will usually be in the public interest. For the rare, exceptional times that a study is not, this requirement provides an additional safeguard to help prevent misuse of the various exemptions and privileges for researchers in the UK GDPR. “Public interest” is not defined in the legislation, so the controller needs to make a case-by-case assessment based on its purposes.
On the point made by the noble Lord, Lord Clement-Jones, about recitals and ICO guidance, although we of course respect and welcome ICO guidance, it does not have legislative effect and does not provide the certainty that legislation does. That is why we have done so via this Bill.
Amendment 7 to Clause 3 would undermine the broader consent concept for scientific research. Clause 3 places the existing concept of “broad consent” currently found in recital 33 to the UK GDPR on a statutory footing with the intention of improving awareness and confidence for researchers. This clause applies only to scientific research processing that is reliant on consent. It already contains various safeguards. For example, broad consent can be used only where it is not possible to identify at the outset the full purposes for which personal data might be processed. Additionally, to give individuals greater agency, where possible individuals will have the option to consent to only part of the processing and can withdraw their consent at any time.
Clause 3 clarifies an existing concept of broad consent which outlines how the conditions for consent will be met in certain circumstances when processing for scientific research purposes. This will enable consent to be obtained for an area of scientific research when researchers cannot at the outset identify fully the purposes for which they are collecting the data. For example, the initial aim may be the study of cancer, but it later becomes the study of a particular cancer type.
Furthermore, as part of the reforms around the reuse of personal data, we have further clarified that when personal data is originally collected on the basis of consent, a controller would need to get fresh consent to reuse that data for a new purpose unless a public interest exemption applied and it is unreasonable to expect the controller to obtain that consent. A controller cannot generally reuse personal data originally collected on the basis of consent for research purposes.
Turning to Amendments 132 and 133 to Clause 26, the general rule described in Article 13(3) of the UK GDPR is that controllers must inform data subjects about a change of purposes, which provides an opportunity to withdraw consent or object to the proposed processing where relevant. There are existing exceptions to the right to object, such as Article 21(6) of the UK GDPR, where processing is necessary for research in the public interest, and in Schedule 2 to the Data Protection Act 2018, when applying the right would prevent or seriously impair the research. Removing these exemptions could undermine life-saving research and compromise long-term studies so that they are not able to continue.
Regarding Amendment 134, new Article 84B of the UK GDPR already sets out the requirement that personal data should be anonymised for research, archiving and statistical—RAS—purposes unless doing so would mean the research could not be carried through. Anonymisation is not always possible as personal data can be at the heart of valuable research, archiving and statistical activities, for example, in genetic research for the monitoring of new treatments of diseases. That is why new Article 84C of the UK GDPR also sets out protective measures for personal data that is used for RAS purposes, such as ensuring respect for the principle of data minimisation through pseudonymisation.
The stand part notice in this group seeks to remove Clause 6 and, consequentially, Schedule 2. In the Government’s consultation on data reform, Data: A New Direction, we heard that the current provisions in the UK GDPR on personal data reuse are difficult for controllers and individuals to navigate. This has led to uncertainty about when controllers can reuse personal data, causing delays for researchers and obstructing innovation. Clause 6 and Schedule 2 address the existing uncertainty around reusing personal data by setting out clearly the conditions in which the reuse of personal data for a new purpose is permitted. Clause 6 and Schedule 2 must therefore remain to give controllers legal certainty and individuals greater transparency.
Amendment 22 seeks to remove the power to add to or vary the conditions set out in Schedule 2. These conditions currently constitute a list of specific public interest purposes, such as safeguarding vulnerable individuals, for which an organisation is permitted to reuse data without needing consent or to identify a specific law elsewhere in legislation. Since this list is strictly limited and exhaustive, a power is needed to ensure that it is kept up to date with future developments in how personal data is used for important public interest purposes.
Baroness Kidron (CB)
I am interested that the safeguarding requirement is already in the Bill, so, in terms of children, which I believe the Minister is going to come to, the onward processing is not a question of safeguarding. Is that correct? As the Minister has just indicated, that is already a provision.
Viscount Camrose (Con)
Just before we broke, I was on the verge of attempting to answer the question from the noble Baroness, Lady Kidron; I hope my coming words will do that, but she can intervene again if she needs to.
I turn to the amendments that concern the use of children’s data in research and reuse. Amendment 8 would also amend Clause 3; the noble Baroness suggests that the measure should not apply to children’s data, but this would potentially prevent children, or their parents or guardians, from agreeing to participate in broad areas of pioneering research that could have a positive impact on children, such as on the causes of childhood diseases.
On the point about safeguarding, the provisions on recognised legitimate interests and further processing are required for safeguarding children for compliance with, respectively, the lawfulness and purpose limitation principles. The purpose limitation provision in this clause is meant for situations where the original processing purpose was not safeguarding and the controller then realises that there is a need to further process it for safeguarding.
Research organisations are already required to comply with the data protection principles, including on fairness and transparency, so that research participants can make informed decisions about how their data is used; and, where consent is the lawful basis for processing, children, or their parents or guardians, are free to choose not to provide their consent, or, if they do consent, they can withdraw it at any time. In addition, the further safeguards that are set out in Clause 26, which I mentioned earlier, will protect all personal data, whether it relates to children or adults.
Amendment 21 would require data controllers to have specific regard to the fact that children’s data requires a higher standard of protection for children when deciding whether reuse of their data is compatible with the original purpose for which it was collected. This is unnecessary because the situations in which personal data could be reused are limited to public interest purposes designed largely to protect the public and children, in so far as they are relevant to them. Controllers must also consider the possible consequences for data subjects and the relationship between the controller and the data subject. This includes taking into account that the data subject is a child, in addition to the need to generally consider the interests of children.
Amendment 23 seeks to limit use of the purpose limitation exemptions in Schedule 2 in relation to children’s data. This amendment is unnecessary because these provisions permit further processing only in a narrow range of circumstances and can be expanded only to serve important purposes of public interest. Furthermore, it may inadvertently be harmful to children. Current objectives include safeguarding children or vulnerable people, preventing crime or responding to emergencies. In seeking to limit the use of these provisions, there is a risk that the noble Baroness’s amendments might make data controllers more hesitant to reuse or disclose data for public interest purposes and undermine provisions in place to protect children. These amendments could also obstruct important research that could have a demonstrable positive impact on children, such as research into children’s diseases.
Amendment 145 would require the ICO to publish a statutory code on the use of children’s data in scientific research and technology development. Although the Government recognise the value that ICO codes can play in promoting good practice and improving compliance, we 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 the new codes. Clause 33 of the Bill already includes a measure that would allow the Secretary of State to request the ICO to publish a code on any matter that it sees fit, so this is an issue that we could return to in the future if the evidence supports it.
Baroness Kidron (CB)
I will read Hansard very carefully, because I am not sure that I absolutely followed the Minister, but we will undoubtedly come back to this. I will ask two questions. Earlier, before we had a break, in response to some of the early amendments in the name of the noble Lord, Lord Clement-Jones, the Minister suggested that several things were being taken out of the recital to give them solidity in the Bill; so I am using this opportunity to suggest that recital 38, which is the special consideration of children’s data, might usefully be treated in a similar way and that we could then have a schedule that is the age-appropriate design code in the Bill. Perhaps I can leave that with the Minister, and perhaps he can undertake to have some further consultation with the ICO on Amendment 145 specifically.
Viscount Camrose (Con)
With respect to recital 38, that sounds like a really interesting idea. Yes, let us both have a look and see what the consultation involves and what the timing might look like. I confess to the Committee that I do not know what recital 38 says, off the top of my head. For the reasons I have set out, I am not able to accept these amendments. I hope that noble Lords will therefore not press them.
Returning to the questions by the noble Lord, Lord Clement-Jones, on the contents of recital 159, the current UK GDPR and EU GDPR are silent on the specific definition of scientific research. It does not preclude commercial organisations performing scientific research; indeed, the ICO’s own guidance on research and its interpretation of recital 159 already mention commercial activities. Scientific research can be done by commercial organisations—for example, much of the research done into vaccines, and the research into AI referenced by the noble Baroness, Lady Harding. The recital itself does not mention it but, as the ICO’s guidance is clear on this already, the Government feel that it is appropriate to put this on a statutory footing.
Baroness Kidron
““Data community”In this Act, a “data community” means an entity established to facilitate the collective activation of data subjects’ data rights in Chapters III and VIII of the UK GDPR and members of a data community assign specific data rights to a nominated entity to exercise those rights on their behalf.”Member’s explanatory statement
This amendment provides a definition of “data community”. It is one of a series of amendments that would establish the ability to assign data rights to a third party.
Baroness Kidron (CB)
My Lords, I hope this is another lightbulb moment, as the noble Lord, Lord Clement-Jones, suggested. As well as Amendment 10, I will speak to Amendments 35, 147 and 148 in my name and the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Clement-Jones. I thank them both. The purpose of these amendments is to move the Bill away from nibbling around the edges of GDPR in pursuit of post-Brexit opportunities and to actually deliver a post-Brexit opportunity.
These amendments would put the UK on an enhanced path of data sophistication while not challenging equivalence, which we will undoubtedly discuss during the Committee. I echo the voice of the noble Lord, Lord Allan, who at Second Reading expressed deep concern that equivalence was not a question of an arrangement between the Government and the EU but would be a question picked up by data activists taking strategic litigation to the courts.
Data protection as conceived by GDPR and in this Bill is primarily seen as an arrangement between an individual and an entity that processes that data—most often a commercial company. But, as evidenced by the last 20 years, the real power lies in holding either vast swathes of general data, such as those used by LLMs, or large groups of specialist data such as medical scans. In short, the value—in all forms, not simply financial—lies in big data.
As the value of data became clear, ideas such as “data is the new oil” and data as currency emerged, alongside the notion of data fiduciaries or data trusts, where you can place your data collectively. One early proponent of such ideas was Jaron Lanier, inventor of virtual reality; I remember discussing it with him more than a decade ago. However, these ideas have not found widespread practical application, possibly because they are normally based around ideas of micropayments as the primary value—and very probably because they rely on data subjects gathering their data, so they are for the boffins.
During the passage of the DPA 2018, one noble Lord counted the number of times the Minister said the words “complex” and “complicated” while referring to the Bill. Data law is complex, and the complicated waterfall of its concepts and provisions eludes most non-experts. That is why I propose the four amendments in this group, which would give UK citizens access to data experts for matters that concern them deeply.
Amendment 10 would define the term “data community”, and Amendment 35 would give a data subject the power to assign their data rights to a data community for specific purposes and for a specific time period. Amendment 147 would require the ICO to set out a code of conduct for data communities, including guidance on establishing, operating and joining a data community, as well as guidance for data controllers and data processors on responding to requests made by data communities. Amendment 148 would require the ICO to keep a register of data communities, to make it publicly available and to ensure proper oversight. Together, they would provide a mechanism for non-experts—that is, any UK citizen—to assign their data rights to a community run by representatives that would benefit the entire group.
Data communities diverge from previous attempts to create big data for the benefit of users, in that they are not predicated on financial payments and neither does each data subject need to access their own data via the complex rules and often obstructive interactions with individual companies. They put rights holders together with experts who do it on their behalf, by allowing data subjects to assign their rights so that an expert can gather the data and crunch it.
This concept is based on a piece of work done by a colleague of mine at the University of Oxford, Dr Reuben Binns, an associate professor in human-centred computing, in association with the Worker Info Exchange. Since 2016, individual Uber drivers, with help from their trade unions and the WIE, asked Uber for their data that showed their jobs, earnings, movements, waiting times and so on. It took many months of negotiation, conducted via data protection lawyers, as each driver individually asked for successive pieces of information that Uber, at first, resisted giving them and then, after litigation, provided.
After a period of time, a new cohort of drivers was recruited, and it was only when several hundred drivers were poised to ask the same set of questions that a formal arrangement was made between Uber and WIE, so that they could be treated as a single group and all the data would be provided about all the drivers. This practical decision allowed Dr Binns to look at the data en masse. While an individual driver knew what they earned and where they were, what became visible when looking across several hundred drivers is how the algorithm reacted to those who refused a poorly paid job, who was assigned the lucrative airport runs, whether where you started impacted on your daily earnings, whether those who worked short hours were given less lucrative jobs, and so on.
This research project continues after several years and benefits from a bespoke arrangement that could, by means of these amendments, be strengthened and made an industry-wide standard with the involvement of the ICO. If it were routine, it would provide opportunity equally for challenger businesses, community groups and research projects. Imagine if a group of elderly people who spend a lot of time at home were able to use a data community to negotiate cheap group insurance, or imagine a research project where I might assign my data rights for the sole purpose of looking at gender inequality. A data community would allow any group of people to assign their rights, rights that are more powerful together than apart. This is doable—I have explained how it has been done. With these amendments, it would be routinely available, contractual, time-limited and subject to a code of conduct.
As it stands, the Bill is regressive for personal data rights and does not deliver the promised Brexit dividends. But there are great possibilities, without threatening adequacy, that could open markets, support innovation in the UK and make data more available to groups in society that rarely benefit from data law. I beg to move.
Lord Clement-Jones (LD)
My Lords, I think this is a lightbulb moment—it is inspired, and this suite of amendments fits together really well. I entirely agree with the noble Baroness, Lady Kidron, that this is a positive aspect. If the Bill contained these four amendments, I might have to alter my opinion of it—how about that for an incentive?
This is an important subject. It is a positive aspect of data rights. We have not got this right yet in this country. We still have great suspicion about sharing and access to personal data. There is almost a conspiracy theory around the use of data, the use of external contractors in the health service and so on, which is extremely unhelpful. If individuals were able to share their data with a trusted hub—a trusted community—that would make all the difference.
Like the noble Baroness, Lady Kidron, I have come across a number of influences over the years. I think the first time many of us came across the idea of data trusts or data institutions was in the Hall-Pesenti review carried out by Dame Wendy Hall and Jérôme Pesenti in 2017. They made a strong recommendation to the Government that they should start thinking about how to operationalise data trusts. Subsequently, organisations such as the Open Data Institute did some valuable research into how data trusts and data institutions could be used in a variety of ways, including in local government. Then the Ada Lovelace Institute did some very good work on the possible legal basis for data trusts and data institutions. Professor Irene Ng was heavily engaged in setting up what was called the “hub of all things”. I was not quite convinced by how it was going to work legally in terms of data sharing and so on, but in a sense we have now got to that point. I give all credit to the academic whom the noble Baroness mentioned. If he has helped us to get to this point, that is helpful. It is not that complicated, but we need full government backing for the ICO and the instruments that the noble Baroness put in her amendments, including regulatory oversight, because it will not be enough simply to have codes that apply. We have to have regulatory oversight.
Baroness Kidron (CB)
My Lords, I thank the co-signatories of my amendments for their enthusiasm. I will make three very quick points. First, the certain rights that the Minister referred to are complaints after the event when something has gone wrong, not positive rights. The second point of contention I have is whether these are so far-reaching. We are talking about people’s existing rights, and these amendments do not introduce any other right apart from access to put them together. It is very worrying that the Government would see these as a threat when data subjects put together their rights but not when commercial companies put together their data.
Finally, what is the Bill for? If it is not for creating a new and vibrant data protection system for the UK, I am concerned that it undermines a lot of existing rights and will not allow for a flourishing of uses of data. This is the new world: the world of data and AI. We have to have something to offer UK citizens. I would like the Minister to say that he will discuss this further, because it is not quite adequate to nay-say it. I beg leave to withdraw.
Digital Markets, Competition and Consumers Bill
Baroness Kidron ExcerptsWednesday 24th January 2024
(9 months, 1 week ago)
Grand CommitteeRead Full debate Digital Markets, Competition and Consumers Act 2024 View all Digital Markets, Competition and Consumers Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 12-II(b) Amendment for Grand Committee (Supplementary to the Second Marshalled List) - (24 Jan 2024)
Baroness Kidron (CB)
My Lords, I have had a number of arguments about “proportionate” in the decade that I have been in this House. In fact, I remember that the very first time I walked into the Chamber the noble Lord, Lord Pannick, was having a serious argument with another noble Lord over a particular word. It went on for about 40 minutes and I remember thinking, “There is no place for me in this House”. Ten years later, I stand to talk about “proportionate”, which has played such a big part in my time here in the Lords.
During the passage of the DPA 2018, many of us tried to get “proportionate” into the Bill on the basis that we were trying to give comfort to people who thought data protection was in fact government surveillance of individuals. The Government said—quite rightly, as it turned out—that all regulators have to be
“proportionate, accountable, consistent, transparent, and targeted”
in the way in which they discharge their responsibilities and they pushed us back. The same thing happened on the age-appropriate design code with the ICO, and the same point was made again. As the noble Baroness, Lady Harding, just set out, we tried once more during the passage of the Online Safety Bill. Yet this morning I read this sentence in some draft consultation documents coming out of the Online Safety Act:
“Provisionally, we consider that a measure recommending that users that share CSAM”—
that is, for the uninitiated, child sexual abuse material—
“have their accounts blocked may be proportionate, given the severity of the harm. We need to do more work to develop the detail of any such measure and therefore aim to consult on it”.
This is a way in which “proportionate” has been weaponised in favour of the tech companies in one environment and it is what I am concerned about here.
As the noble Lord said, using “proportionate” introduces a gap in which uncertainty can be created, because some things are beyond question and must be considered, rather than considered on a proportionate basis. I finish by saying that associating the word specifically in relation to conduct requirements or making pro-competitive interventions must create a legal uncertainty if a regulator can pick up that word and put it against something so absolute and illegal and then have to discuss its proportionality.
Lord Vaizey of Didcot (Con)
I wonder if I can just slip in before Members on the Front Bench speak, particularly those who have signed the amendment. I refer again to my register of interests.
I support the principle that lies behind these amendments and want to reinforce the point that I made at Second Reading and that I sort of made on the first day in Committee. Any stray word in the Bill when enacted will be used by those with the deepest pockets—that is, the platforms—to hold up action against them by the regulator. I read this morning that the CMA has resumed its inquiry into the UK cloud market after an eight-month hiatus based on a legal argument put by Apple about the nature of the investigation.
It seems to me that Clause 19(5) is there to show the parameters on which the CMA can impose an obligation to do with fair dealing and open choices, and so on. It therefore seems that “proportionate”—or indeed perhaps even “appropriate”—is unnecessary because the CMA will be subject to judicial review on common-law principles if it makes an irrational or excessive decision and it may be subject to a legal appeal if people can argue that it has not applied the remedy within the parameters set by paragraphs (a), (b) and (c) of Clause 19(5). I am particularly concerned about whether there is anything in the Bill once enacted that allows either some uncertainty, which can be latched on to, or appeals—people refer to “judicial review plus” or appeals on the full merits, which are far more time-consuming and expensive and which will tie the regulator up in knots.
Viscount Colville of Culross (CB)
If “indispensable” and purely “benefit” are the same, why was the change made on Report in the Commons?
Baroness Kidron (CB)
I was really interested in the introduction of the word “unknown”. The noble Lord, Lord Lansley, set out all the different stages and interactions. Does it not incentivise the companies to call back information to this very last stage, and the whole need-for-speed issue then comes into play?
Viscount Camrose (Con)
I will revert first to the questions about the word “indispensable”. As I have said, the Government consulted very widely, and one of the findings of the consultation was that, for a variety of stakeholders, the word “indispensable” reduced the clarity of the legislation.
Viscount Camrose (Con)
I cannot give a full account of the individual stakeholders right now; I am happy to ask the department to clarify further in that area. My contention is that the effect of the two sentences are the same, with the new one being clearer than the old one. I am very happy to continue to look at that and listen to the arguments of noble Lords, but that is the position. Personally, when I look at the two sentences, I find it very difficult to discern any difference in meaning between them. As I say, I am very happy to receive further arguments on that.
With respect to the participative arrangements by which a decision is reached around, for example, a conduct requirement, during the period of conduct requirement design, and during the decision-making period, it is, as my noble friend Lord Lansley has stated, highly to be expected that firms will make representations about the consumer benefits of their product. During a breach investigation, on the other hand, later on in the process, a consumer benefits exemption can be used as a safeguard or defence against a finding of breach.
Sorry, but there were so many questions that I have completely lost track. Perhaps the noble Baroness, Lady Kidron, will restate her question.
Baroness Kidron (CB)
I think the Minister was in the middle of answering it and saying why something might be “unknown” right at the last.
Viscount Camrose (Con)
As many noble Lords in the debate have alluded to, we have to be clear that this is a fast-moving field, and we have to at least allow for the possibility that new technologies can provide new consumer benefits and that it is okay to argue that a new and emerging technology that was not part of the original consideration can be considered as part of the defence against a finding of breach. The fact that the intended meaning is intended to be clearer in the current drafting is aiming to provide greater certainty to all businesses while ensuring that consumers continue to get the best outcomes.
Amendment 41, from the noble Lord, Lord Clement-Jones, would change the current drafting of the countervailing benefits exemption in several ways that together are intended to ensure that the CMA is provided as soon as possible with information relating to an SMS firm’s intention to rely on the exemption. We agree with noble Lords who have spoken today that it is important that the exemption cannot be used to avoid or delay enforcement action. The conduct investigation will operate in parallel to the assessment of whether the exemption applies, meaning that the investigation deadline of six months is not affected by the exemption process. The regime has been designed to encourage an open dialogue between the CMA and SMS firms, helping to avoid delays, unintended consequences and surprises on all sides. Therefore, in many cases, if a firm intends to rely on the exemption, we anticipate that this will be clear to all parties from early on in the process.
Digital Markets, Competition and Consumers Bill
Baroness Kidron ExcerptsMonday 22nd January 2024
(9 months, 1 week ago)
Grand CommitteeRead Full debate Digital Markets, Competition and Consumers Act 2024 View all Digital Markets, Competition and Consumers Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 12-II Second marshalled list for Grand Committee - (22 Jan 2024)
Baroness Kidron (CB)
My Lords, I too faced a glitch, having wanted to add my name to these amendments. Since we are at a new stage of the Bill, I declare my interests as set out in the register, particularly as an adviser to the Institute for Ethics in AI at Oxford and to the Digital Futures centre at the LSE and as chair of the 5Rights Foundation. I support the noble Lord, Lord Clement-Jones, who has, with this group of amendments, highlighted that job creation or displacement and the quality of work are all relevant considerations for the CMA. I think it is worth saying that, when we talk about the existential threat of AI, we always have three areas of concern. The first is the veracity and provenance of information; the second is losing control of automated weapons; and the third, importantly in this case, is the many millions of jobs that will be lost, leaving human beings without ways to earn money or, perhaps, a reason for being.
There are two prevailing views on this. One is that of Elon Musk, who, without telling us how we might put food on the table, pronounced to the Prime Minister
“There will come a point where no job is needed – you can have a job if you want one for personal satisfaction but AI will do everything”.
The other, more optimistic view is that boring or repetitive work will go, which is, in part, beautifully illustrated by David Runciman’s recent book, The Handover, where he details the fate of sports officials. In 2021, Australian and US line judges were replaced by computers, while Wimbledon chose to keep them—largely for aesthetic reasons, because of the lovely Ralph Lauren white against the green grass. Meanwhile, Carl Frey and Michael Osborne, in their much-publicised 2017 study assessing the susceptibility of 702 different jobs to computerisation, suggested that sports officials had a 98% probability of being computerised.
In fact, since 2017, automation has come to all kinds of sports but, as Runciman says,
“Cricket matches, which traditionally featured just two umpires, currently have three to manage the complex demands of the technology, plus a referee to monitor the players’ behaviour”.
Soccer has five, plus large teams of screen watchers needed to interpret—very often badly—replays provided by VAR. The NBA Replay Center in Secaucus employs 25 people in a NASA-like control room, along with a rota of regular match officials.
It would be a fool who would bet that Elon Musk is entirely wrong, but nor should we rely on the fact that all sectors will employ humans to watch over the machines, or even that human beings will find that being the supervisor of a machine, or simply making an aesthetic contribution rather than being a decision-maker, is a good result. It is more likely that the noble Lord, Lord Knight, is correct that the algorithm will indeed be supervising the human beings.
I believe that the noble Lord, Lord Clement-Jones, and his co-author, the noble Lord, Lord Knight, may well prove to be very prescient in introducing this group of amendments that thoughtfully suggest at every stage of the Bill that the CMA should take the future of work and the impact of work into account in coming to a decision. As the noble Lord made clear in setting out each amendment, digital work is no longer simply gig work and the concentration in digital markets of behemoth companies has had and will continue to have huge consequences for jobs across supply lines, as well as wages within markets and, most particularly, on terms of employment and access to work.
AI is, without question, the next disruptor. Those companies that own the technology will be dominant across multiple markets, if not every market, and for the CMA to have a mandate to consider the impact on the workforce is more than sensible, more than foresightful; it is in fact a new reality. I note that the Minister, in responding to the last group, mentioned the importance of foreseeable and existing trends: here we have one.
Baroness Kidron (CB)
My Lords, I do not actually have much to add to the excellent case that has already been made, but I, too, was at the meeting that the noble Baroness, Lady Jones of Whitchurch, mentioned, and noticed the CMA’s existing relationships.
Quite a lot has been said already, on the first group and just now, about lobbying—not lobbying only in a nasty sense but perhaps about the development of relationships that are simply human. I want to make it very clear that those words do not apply to the CMA specifically—but I have worked with many regulators, both here and abroad, and it starts with a feeling that the regulated, not the regulator, holds the information. It goes on to a feeling that the regulated, not the regulator, has the profound understanding of the limits of what is possible. It then progresses to a working relationship in which the regulator, with its limited resources, starts to weigh up what it can win, rather than what it should demand. That results in communities that have actually won legal protections remaining unprotected. It is a sort of triangulation of purpose, in which the regulator’s primary relationship ends up being geared towards government and industry, rather than towards the community that it is constituted to serve.
In that picture, I feel that the amendments in the name of the noble Baroness, Lady Jones of Whitchurch, make it clear, individually and collectively, that at every stage maximum transparency must be observed, and that the incumbents should be prevented from holding all the cards—including by hiding information from the regulator or from other stakeholders who might benefit from it.
I suggest that the amendments do not solve the problem of lobbying or obfuscation, but they incentivise providing information and they give challengers a little bit more of a chance. I am sure we are going to say again and again in Committee that information is power. It is innovation power, political power and market power. I feel passionately that these are technical, housekeeping amendments rather than ones that require any change of government policy.
Lord Clement-Jones (LD)
My Lords, it is a pleasure to follow the noble Baroness, Lady Kidron, whose speech segues straight into my Amendments 14 and 63. This is all about the asymmetry of information. On the one hand, the amendments from the noble Baroness, Lady Jones, which I strongly support and have signed, are about giving information to challengers, whereas my amendments are about extracting information from SMS undertakings.
Failure to respond to a request for information allows SMS players to benefit from the information asymmetry that exists in all technology markets. Frankly, incumbents know much more about how things work than the regulators. They can delay, obfuscate, claim compliance while not fully complying and so on. By contrast, if they cannot proceed unless they have supplied full information, their incentives are changed. They have an incentive to fully inform, if they get a benefit from doing so. That is why merger control works so well and quickly, as the merger is suspended pending provision of full information and competition authority oversight. We saw that with the Activision Blizzard case, where I was extremely supportive of what the CMA did—in many ways, it played a blinder, as was subsequently shown.
We on these Benches consider that a duty to fully inform is needed in the Bill, which is the reason for our Amendments 14 and 63. They insert a new clause in Chapter 2, which provides for a duty to disclose to the CMA
“a relevant digital activity that may give rise to actual or likely detrimental impact on competition in advance of such digital activity’s implementation or effect”
and a related duty in Chapter 6 ensuring that that undertaking
“has an overriding duty to ensure that all information provided to the CMA is full, accurate and complete”.
Under Amendment 14, any SMS undertaking wishing to rely on it must be required to both fully inform and pre-notify the CMA of any conduct that risks breaching one of the Bill’s objectives in Clause 19. This is similar to the tried-and-tested pre-notification process for mergers and avoids the reality that the SMS player may otherwise simply implement changes and ignore the CMA’s requests. A narrow pre-notification system such as this avoids the risks.
We fully support and have signed the amendments tabled by the noble Baroness, Lady Jones. As techUK says, one of the benefits that wider market participants see from the UK’s pro-competition regime is that the CMA will initiate and design remedies based on the evidence it gathers from SMS firms in the wider market. This is one of the main advantages of the UK’s pro-competition regime over the EU DMA. To achieve this, we need to make consultation rights equal for all parties. Under the Bill currently, firms with SMS status, as the noble Baroness, Lady Harding, said, will have far greater consultation rights than those that are detrimentally affected by their anti-competitive behaviour. As she and the noble Lord, Lord Vaizey, said, there are opportunities for SMS firms to comment at the outset but none for challenger firms, which can comment only at a later public consultation stage.
It is very important that there are clear consultation and evidence-gathering requirements for the CMA, which must ensure that it works fairly with SMS firms, challengers, smaller firms and consumers throughout the process, ensuring that the design of conduct requirements applies to SMS firms and pro-competition interventions consider evidence from all sides, allowing interventions to be targeted and capable of delivering effective outcomes. This kind of engagement will be vital to ensuring that the regime can meet its objectives.
We do not believe that addressing this risk requires removing the flexibility given by the Bill. Instead, we believe that it is essential that third parties are given a high degree of transparency and input on deliberation between the CMA and SMS firms. The CMA must also—and I think this touches on something referred to by the noble Baroness, Lady Jones—allow evidence to be submitted in confidence, as well as engage in wider public consultations where appropriate. We very strongly support the amendments.
On the amendments from the noble Lord, Lord Tyrie, it is a bit of a curate’s egg. I support Amendments 12A and 12B because I can see the sense in them. I do not see that we need to have another way of marking the CMA’s homework, however. I am a great believer that we need greater oversight, and we have amendments later in the Bill for proposals to increase parliamentary oversight of what the CMA is doing. However, marking the CMA’s homework at that stage is only going to be an impediment. It will be for the benefit of the SMS undertakings and not necessarily for those who wish to challenge the power of those undertakings. I am only 50% with the noble Lord, rather than the whole hog.
Lord Clement-Jones (LD)
My Lords, all the SMS has to do is put it through one of its large language models, and hey presto.
Baroness Kidron (CB)
I am losing track of the conversation because I thought we were asking for more information for the challenger companies. rather than this debate between the SMS and the regulator. Both of them are, I hope, well resourced, but the challenger companies have somehow been left out of this equation and I feel that we are trying to get them into the equation in an appropriate way.
Lord Clement-Jones (LD)
That is not incompatible. These are two sides of the same coin, which is why they are in this group. I suppose we could have degrouped it.
Baroness Harding of Winscombe (Con)
My Lords, I shall also discuss the leveraging or whack-a-mole provisions. Perhaps Conservative Peers today are London buses: this is the fourth London bus to make the same point. I too would have added my name to my noble friend Lord Vaizey’s amendment had I been organised enough.
I shall make a couple of points. The noble Lord, Lord Tyrie, said earlier that we are all here on the Bill because harm has already been done. If noble Lords will forgive me, I will tell a little story. In 2012, I went on a customer trip to Mountain View, Google’s headquarters in California, as the chief executive of TalkTalk. We were in the early days of digital advertising and TalkTalk was one of its biggest customers. A whole group of customers went on what people now call a digital safari to visit California and see these tech companies in action.
I will never forget that the sales director left us for a bit for a demo from some engineers from head office in Mountain View, from Google, who demoed a new functionality they were working on to enable you to easily access price comparisons for flights. It was an interesting demo because some of the other big customers of Google search at the time were independent flight search websites, whose chief executives had been flown out by Google to see all the new innovation. The blood drained from their faces as this very well-meaning engineer described and demoed the new functionality and explained how, because Google controlled the page, it would be able to promote its flight search functionality to the top of the page and demote the companies represented in the room. When the sales director returned, it was, shall we say, quite interesting,
I tell that tale because there are many examples of these platforms leveraging the power of their platform to enter adjacent markets. As my noble friend has said, that gets to the core of the Bill and how important it is that the CMA is able to impose conduct requirements without needing to go through the whole SMS designation process all over again.
I know that the tech firms’ counterargument to this is that it is important that they have the freedom to innovate, and that for a number of them this would somehow create “a regulatory requirement to seek permission to innovate”. I want to counter that: we want all companies in this space to have the freedom to innovate, but they should not have the freedom to prioritise their innovation on their monopoly platform over other people’s innovation. That is why we have to get a definition of the leveraging principle, or the whack-a-mole principle, right. As with almost all the amendments we have discussed today, I am not particularly wedded to the specific wording, but I do not think that the Bill as it is currently drafted captures this clearly enough, and Amendments 25, 26, and 27 get us much closer to where we need to be.
I, too, add my voice in support my noble friend Lord Lansley’s amendments. I must apologise for not having studied them properly in advance of today, but my noble friend introduced them so eloquently that it is very clear that we need to put data clearly in the Bill.
Finally, as a member of my noble friend’s Communications and Digital Committee, I, too, listened very carefully to the comments made by the noble Lord, Lord Clement-Jones, about copyright. I feel this is a very big issue. Whether this is the right place to address it, I do not know, but I am sure he is right that we need to address it somehow.
Baroness Kidron (CB)
My Lords, I am sorry to break the Conservative bus pattern but I, too, will speak to Amendments 26 and 27, to which I have added my name, and to Amendment 30. Before I do, I was very taken by the amendments spoken to by the noble Lord, Lord Lansley, and I support them. I feel somewhat sheepish that I had not seen the relationship between data and the Bill, having spent most of the past few months with my head in the data Bill. That connection is hugely important, and I am very grateful to the noble Lord for making such a clear case. In supporting Amendments 26 and 27, I recognise the value of Amendment 25, tabled by the noble Lord, Lord Vaizey, and put on record my support for the noble Lord, Lord Holmes, on Amendment 24. So much has been said that we have managed to change the name of the leveraging principle to the whack-a-mole principle and everything that has been said has been said very well.
The only point I want to make on these two amendments, apart from to echo the profound importance that other noble Lords have already spoken of, is that the ingenuity of the sector has always struck me as being equally divided between its incredible creativity in creating new products and things for us to do and services that it can provide, and an equal ingenuity in avoiding regulation of all kinds in all parts of the world. Without having not only the designated activity but the activities the sector controls that are adjacent to the activity, we do not have the core purpose of the Bill. At one point I thought it might help the Minister to see that the argument he made in relation to Clause 6(2) and (3), which was in defence of some flexibility for the Secretary of State, might equally be made on behalf of the regulator in this case.
Turning briefly to Amendment 30 in the name of the noble Lord, Lord Clement-Jones, I first have to make a slightly unusual declaration in that my husband was one of the Hollywood writers who went on strike and won a historic settlement to be a human being in charge of their AI rather than at the behest of the AI. Not only in the creative industries but in academia, I have seen first-hand the impact of scraping information. Not only is the life’s work of an academic taken without permission, but then regurgitating it as an inaccurate mere guess undermines the very purpose of academic distinctions. There is clearly a copyright issue that requires an ability both to opt out and correct, and to share in the upside, as the noble Lord pointed out.
I suggest that the LLMs and general AI firms have taken the axiom “it’s better to ask forgiveness than permission” to unbelievable new heights. Our role during the passage of this Bill may be to turn that around and say that it is better to ask permission than forgiveness.
Baroness Jones of Whitchurch (Lab)
My Lords, we have had a wonderfully eclectic debate. I am sorry if we gave some of the amendments more attention than others, because we have a number of very important issues here. Even in my response I may not be giving some colleagues due deference for their hard work and the good arguments they have put forward.
As noble Lords have commented, Amendments 26, 27 and 34 are in my name. As we have discussed, Amendments 26 and 27 would ensure that the CMA can tackle anti-competitive conduct in non-designated activity, provided that this conduct is related to designated activity. This would ensure, for example, that a designated company facing conduct requirements could not simply shift the resources of its business into another similar business venture, which would have a similar outcome of anti-competitive behaviour.
I am very grateful to the noble Baroness, Lady Stowell, for her support. The example she gave of Apple resonates with all of us and has obviously been in the news. It was one of the behaviours I described as rather vindictive in the last debate. I am not sure how much extra money Apple is going to make from it, but it is a question of rubbing someone’s nose in it because you do not like the decision that has been made. I feel that we need to address this issue.
The noble Lord, Lord Vaizey, in his Amendment 25, made a very similar point about the leveraging principle. We have all signed up to “the whack-a-mole principle”; I think we will call it that from now on. As the noble Baroness, Lady Harding, made clear, this is about addressing the leveraging of SMS markets to enter adjoining markets. She gave the example of travel price comparison. I feel that is a lazy innovation; if you get so big, you stop innovating—you copy the competing firms and taking their best ideas without innovating any more. It is in all our interests to get a grip on this, so that these companies that have great resources and great capacity for innovation innovate in a creative way rather than just copying other people’s ideas.
Amendment 34, which is also in our names, would enable the CMA to keep conduct requirements under review and take account of whether those requirements are having their intended effects or if further steps of pro-competition intervention is necessary. It would provide a clearer link between the measures available to the CMA. As the noble Lord, Lord Clement-Jones, and others have said, it underpins the importance of interoperability in CMA decisions. We believe that the amendments help to clarify and reinforce the powers available to the CMA.
I listened carefully to the noble Lord, Lord Holmes, who, as ever, provided enormous insight into the tech world and the consequences of the legislation. We share his objective of getting the powers of the CMA in the right balance. His amendment challenges the Government to explain why the CMA can only impose a conduct requirement to achieve the fair dealing, open choice or trust and transparency objectives—which seems to be overly restrictive and open to legal challenge. We look forward to hearing the Minister’s explanation of why those restrictions were felt necessary. The noble Lord, Lord Holmes, also raised an important point in his Amendment 24, which we have not given sufficient weight to, about the need for those conduct requirements to deliver proper accessibility in line with previous legislation. We absolutely support him in that quest.
The amendments from the noble Lords, Lord Clement-Jones and Lord Lansley, raise important points about transparency and improved data. They stress the importance of portability and interoperability and put data firmly into the conduct requirements. We support those arguments and look forward to the Minister’s response to what we feel are common-sense proposals.
Data Protection and Digital Information Bill
Baroness Kidron ExcerptsTuesday 19th December 2023
(10 months, 2 weeks ago)
Lords ChamberRead Full debate Data Protection and Digital Information Bill 2022-23 View all Data Protection and Digital Information Bill 2022-23 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 29 November 2023 - large print - (29 Nov 2023)
Baroness Kidron (CB)
My Lords, I declare my interests set out in full on the register, including as an advisor to the Institute for Ethics in AI at Oxford University, chair of the Digital Futures for Children centre at the LSE and chair of the 5Rights Foundation. I add my welcome to my noble friend Lord de Clifford, who I had the pleasure of meeting yesterday, and I look forward to his maiden speech.
I start by quoting Marcus Fysh MP who said in the other place:
“this is such a serious moment in our history as a species. The way that data is handled is now fundamental to basic human rights … I say to those in the other place as well as to those on the Front Benches that … we should think about it incredibly hard. It might seem an esoteric and arcane matter, but it is not. People might not currently be interested in the ins and out of how AI and data work, but in future you can bet your bottom dollar that AI and data will be interested in them. I urge the Government to work with us to get this right”.—[Official Report, Commons, 29/11/23; col. 878.]
He was not the only one on Report in the other place who was concerned about some of the provisions in the Bill, who bemoaned the lack of scrutiny and urged the Government to think again. Nor was he the only one who reluctantly asked noble Lords to send the Bill back to the other place in better shape.
I associate myself with the broader points made by both noble Lords who have already spoken—I do not think I disagreed with a word that they said—but my own comments will primarily focus on the privacy of children, the case for data communities, access for researchers and, indeed, the promises made to bereaved parents and then broken.
During the passage of the Data Protection Act 2018, your Lordships’ House, with cross-party support, introduced the age appropriate design code, a stand-alone data protection regime for the under-18s. The AADC’s privacy by design approach ushered in a wave of design change to benefit children: TikTok and Instagram disabled direct messaging from unknown adults to children; YouTube turned off auto-play; Google turned on safe search on by default for children; 18-plus apps were taken out of the Play Store; TikTok stopped notifications through the night; and Roblox stopped tracking and targeting children for advertising. These were just a handful of hundreds of changes to products and services likely to be accessed by children. Many of these changes have been rolled out globally, meaning that while other jurisdictions cannot police the code, children in those places benefit from it. As the previous Minister, the noble Lord, Lord Parkinson, acknowledged, it contributes to the UK’s reputation for digital regulation and is now being copied around the globe.
I set this out at length because the AADC not only drove design change, it also established the crucial link between privacy and safety. This is why it is hugely concerning that children have not been explicitly protected from changes that lessen user data protections in the Bill. I have given Ministers notice that I will seek to enshrine the principle that children have the right to a higher bar of data protection by design and default; to define children’s data as sensitive personal data in the Bill; and exclude children from proposals that risk eroding the impact of the AADC, notably in risk assessments, automated processing, onward processing, direct marketing and the extended research powers of commercial companies.
Minister Paul Scully said at Second Reading in the other place:
“We are committed to protecting children and young people online … organisations will still have to abide by our Age-appropriate design code”.—[Official Report, Commons, 17/4/23; col. 101.]
I take it from those words that any perception of, or diminution to, children’s data rights is inadvertent, and it remains the Government’s policy not to weaken the AADC as currently configured in the Bill. Will the Minister confirm that it is indeed the Government’s intention to protect the AADC and that he is willing to work with me to ensure that it is that the outcome? I will also seek a requirement for the ICO to create a statutory children’s code in relation to AI. The ubiquitous deployment of AI technology to recommend and curate is nothing new, but the rapid advances in generative AI capabilities marks a new stage in its evolution. In the hundreds of pages of the ICO’s non-binding Guidance on AI and Data Protection, its AI and Data Protection Risk Toolkit and its advice to developers on generative AI, there is but one mention of the word “child”—in a case study about child benefit.
The argument made was that children are covered by the AADC, which underlines again just how consequential it is. However, since adults are covered by data law but it is considered necessary to have specific AI guidance, the one in three users that is under 18 deserves the same consideration. I am not at liberty to say today, but later this week—perhaps as early as tomorrow—information will emerge that underlines the urgent need for specific consideration of children’s safety in relation to generative models. I hope that the Minister will agree that an AI code for kids is an imperative rather than nice to have.
Similarly, we must deliver data privacy to children in education settings. Given the extraordinary rate at which highly personal data seeps out of schools into the commercial world, including to gambling companies and advertisers, coupled with the scale of tech adoption in schools, it is untenable to continue to see tech inside school as a problem for schools and tech outside school as a problem for regulators. The spectre of a nursery teacher having enough time and knowledge to integrate the data protection terms of a singing app, or the school ICT lead having to tackle global companies such as Google and Microsoft to set the terms for their students’ privacy, is frankly ridiculous, but that is the current reality. Many school leaders feel abandoned by the Government’s insistence that they should be responsible for data protection when both the AADC and Online Safety Act have been introduced but they benefit from neither. It should be the role of the ICO to set data standards for edtech and to ensure that providers are held to account if they fall short. As it stands, a child enjoys more protection on the bus to school than in the classroom.
Finally on issues relating to children, I want to raise a technical issue around the production of AI-generated child sexual abuse material. I recognise the Government’s exemplary record on tackling CSAM but, unfortunately, innovation does not stop. While AI-generated child sexual abuse content is firmly in scope of UK law, it appears that the models or plug-ins trained on generating CSAM or trained to generate CSAM are not. At least four laws, the earliest from 1978, are routinely used to bring criminal action against CSAM and perpetrators of it, so I would be grateful if the Minister would agree to explore the issue with the police unit that has raised it with me and make an explicit commitment to close any gaps identified.
We are at an inflection point, and however esoteric and arcane the issues around data appear to be, to downgrade a child’s privacy even by a small degree has huge implications for their safety, identity and selfhood. If the Government fail to protect and future-proof children’s privacy, they will be simply giving with one hand in the OSA and taking away with the other in this Bill.
Conscious that I have had much to say about children, I will briefly put on the record issues that we can debate at greater length in Committee. While data law largely rests on the assumption of a relationship between an individual and a service, we have seen over a couple of decades that power lies in having access to large datasets. The Bill offers a wonderful opportunity to put that data power in the hands of new entrants to the market, be they businesses or communities, by allowing the sharing of individual data rights and being able to assign data rights to third parties for agreed purposes. I have been inspired by approaches coming out of academia and the third sector which have supported the drafting of amendments to find a route that would enable the sharing of data rights.
Similarly, as the noble Lord, Lord Knight, said, we must find a route to access commercial data sets for public interest research. I was concerned that in the other place when former Secretary of State Jeremy Wright queried why a much-touted research access had not materialised in the Bill, the Minister appeared to suggest that it was covered. The current drafting embeds the asymmetries of power by allowing companies to access user data, including for marketing and creating new products, but does not extend access for public interest research into the vast databases held by those same companies. There is a feeling of urgency emerging as our academic institutions see their European counter- parts gain access to commercial data because of the DSA. There is an increased need for independent research to support our new regulatory regimes such as the Online Safety Act. This is an easy win for the Government and I hope that they grasp it.
Finally, I noted very carefully the words of the Minister when he said, in relation to a coroner’s access to data, that the Secretary of State had made an offer to fill the gap. This is a gap that the Government themselves created. During the passage of the Online Safety Act we agreed to create a humane route to access data when a coroner had reason to suspect that a regulated company might have information relevant to the death of a child. The Government have reneged by narrowing the scope to those children taking their own life. Expert legal advice says that there are multiple scenarios under which the Government’s narrowing scope creates a gaping hole in provision for families of murdered children and has introduced uncertainty and delay in cases where it may not be clear how a child died at the outset.
I must ask the Minister what the Government are trying to achieve here and who they are trying to please. Given the numbers, narrowing scope is unnecessary, disproportionate and egregiously inhumane. This is about parents of murdered children. The Government lack compassion. They have created legal uncertainty and betrayed and re-traumatised a vulnerable group to whom they made promises. As we go through this Bill and the competition Bill, the Minister will at some points wish the House to accept assurances from the Dispatch Box. The Government cannot assure the House until the assurances that they gave to bereaved parents have been fulfilled.
I will stop there, but I urge the Minister to respond to the issues that I have raised rather than leave them for another day. The Bill must uphold our commitment to the privacy and safety of children. It could create an ecosystem of innovative data-led businesses and keep our universities at the forefront of tech development and innovation. It simply must fulfil our promise to families who this Christmas and every other Christmas will be missing a child without ever knowing the full circumstances surrounding that child’s death. That is the inhumanity that we in this House promised to stop—and stop it we must.