Investigatory Powers (Amendment) Bill [ Lords ] (Second sitting)

Debate between Stuart C McDonald and Dan Jarvis

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Dan Jarvis]

I will be very brief. I am grateful for the Minister’s remarks, but I want to raise the concerns of some telecommunications operators and of organisations representing the sector about clauses 18 and 19. These include a view that the role of the proposed new notices regime would hinder and even veto product development.

I know that the Minister and his Department have engaged with stakeholders about those concerns, as have Labour Members. I would be grateful if the Minister briefly set out whether recent engagement has taken place with stakeholders with regard to these matters, and whether he has any further plans to address the concerns that they have expressed about clauses 18 and 19.

[Stuart C. McDonald]

I want to make a similar case. We are now getting into territory where I struggle to understand exactly what is going on, because I am not a tech geek. We are speeding past this measure almost as if it were inconsequential, but the language in some of the briefings that we have received about it is pretty dramatic.

The bundle that was emailed to Committee members this morning includes evidence from Apple that I think needs to be addressed:

“At present, the SoS must navigate important oversight mechanisms before they can block the offering of a new product or service they believe will impact…ability to access private user data.”

Apple summarises the suite of clauses that the Committee is considering, including the requirement in clause 18 to maintain the status quo during the review process, as allowing the Secretary of State

“to block, in secret, the release of a product or service even before the legality of a Technical Capability Notice can be reviewed by independent oversight bodies. The effect of this amendment will be to, extraordinarily, hand the SoS the power to block new products or services prior to their legality being ascertained. This result upends the balance of authority and independent oversight Parliament struck in the IPA.”

Given the new definition of “telecommunications operator” in clause 19, Apple has also warned that there will be serious implications for conflicts with other laws, including the EU GDPR and with US legislation.

As well as Apple, we have heard from various other organisations. TechUK has highlighted problems with broadening the definition of “telecommunications provider” before control of provision of a telecoms service, including to UK users, is established overseas. It also highlights the potential conflict of laws. What if the domestic law in the country in which a company is based does not allow for compliance with the notice that the Home Secretary has delivered? That company might not even be able to raise the issue of a conflict of laws, because it would be sworn to secrecy under the Bill.

According to TechUK, the proposed changes mark a departure in the way that the UK approaches the extraterritorial reach of the UK or UK laws and the consequential conflicts of laws. That was all recognised in the 2016 Act, in which a partial solution was found in the form of a UK-US agreement. Currently, however, the Government have not set out any plans to work towards equivalent solutions.

In relation to clause 21, I will raise similar concerns from other experts, but it is clear that some very serious companies and organisations have significant concerns about what the combination of these notices may end up delivering. Those concerns need addressed.

Investigatory Powers (Amendment) Bill [ Lords ] (First sitting)

Debate between Stuart C McDonald and Dan Jarvis

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Dan Jarvis (Barnsley Central) (Lab)]

It is a pleasure to serve under your chairship, Mrs Cummins. I rise to speak very briefly to clause 1, and to thank the Minister for his opening remarks.

At the outset of our consideration, we should all take the opportunity to pay tribute to the exceptional men and women who have served in our law enforcement and security services. We owe them a deep debt of gratitude. Let me say that the Opposition support the Bill, which updates aspects of the Investigatory Powers Act 2016. It is imperative that legal frameworks are updated to ensure that our security and law enforcement services keep up with the challenges to communications technology in an increasingly challenging and complex landscape of threats to our safety and national security. None the less, the important provisions proposed in this Bill need to be scrutinised carefully. The shadow Home Secretary and I made it clear on Second Reading that we will work with the Government to improve it in places, following the example of the constructive cross-party work that was done in the other place.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair, Mrs Cummins.

I echo what the shadow Minister says. We are all here to assist the brave personnel in our security and intelligence services, but that does not mean that we will not closely scrutinise this legislation. We did not oppose the Bill on Second Reading. Some parts are good, but we have indicated our serious concerns about other parts because we think the powers go too far. They have not been shown to be necessary and proportionate; rather, they are more for the convenience of the security and intelligence services. How these powers are drafted also causes us concern, because they seem to allow behaviours beyond what we were told the powers were going to be used for. At other times, it is the nature of the oversight that is a concern, as the Bill introduces potentially intrusive powers.

I have one other brief point to make, which I indicated I would make at last night’s meeting of the Programming Sub-Committee. I had hoped that this morning we could perhaps have had some witnesses to guide us through this process. I think that would have been very helpful. It was very helpful in 2016, when we were looking at the original legislation, and I regret that we do not have such an opportunity this morning.

The provisions on bulk personal datasets and so-called low/no datasets are an area where we fear that the legislation is rather more a matter of inconvenience than something that has been shown to be a necessity. That will emerge in the debate about clause 2, which contains quite a lot of the detail about how the regime is supposed to work. Basically, we have been told that there will be a significant increase in the use of bulk personal datasets. We have been told that scrutiny is too slow, so we will either have to remove it or, perhaps more accurately, water it down in relation to these so-called low/no datasets. Fundamentally, I do not like that argument. The Minister will need to make a compelling case.

When we discuss clause 2, it would be useful if the Minister told us how many bulk datasets are retained and examined each year currently; how many datasets it is envisaged will be retained and examined after these powers come into force; what percentage of the datasets he thinks would be considered low/no datasets; how long authorisation processes take currently and why they take that length of time; and why cannot we improve or accelerate that process in some way, rather than having to water it down in the way that this Bill suggests. We will ask the Minister for that sort of evidence, because he is asking us to do away with parts of the oversight system that were put in place in 2016, and we want to understand how that oversight system is causing a problem at the moment. If he cannot explain that, we cannot support this new regime.

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[Dan Jarvis]

May I reflect on my gentle amusement at hearing the Minister’s remarks about a former shadow Security Minister and his onward passage to becoming Leader of the Opposition? I know that these are matters on which he speaks with great authority.

We have already had very helpful contributions from two senior Intelligence and Security Committee members. Questions about the meaning of “low or no reasonable expectation of privacy” in relation to BPDs have been raised throughout the Bill’s progress in the other place and on Second Reading in this House, including by members of this Committee. The amendment seeks to probe the meaning of the phrase, but I should be clear at the outset that I do not intend to divide the Committee on this or any other amendment on which I intend to speak.

I will set out two scenarios. It would be genuinely helpful if the Minister could clarify the limits to the factors relating to the Data Protection Act 2018. The first scenario is where the data can be attributed to a leak that, although unintentional, resulted in the unconsented publication of personal information in the public domain. Would a leak of the personal details and working patterns of the staff of Members of this House—a number of hon. Members will remember the one that happened in March 2017—be subject to a low or no reasonable expectation of privacy?

The second scenario is the deliberate and unlawful publication of personal information into the public domain. If there were a hack resulting in the unlawful publication of personal information into the public domain, would that information also be subject to a low or no reasonable expectation of privacy? Data breaches of that nature occur regularly: the personal information of more than 2 million Duolingo users was compromised last year. A user’s mastery of French verb conjugation is unlikely to be of interest to anyone, with the possible exception of our friends over the channel, but other personal information could be. The Duolingo data was put up for sale on the dark web, so it might be regarded as third party BPDs. It is important that the Minister clarifies the meaning of “low or no reasonable expectation of privacy” in relation to those two scenarios.

Labour Members are not opposed to the concept of “low or no reasonable expectation of privacy” in relation to BPDs. We want to ensure that the police and security services are not unnecessarily limited in their intelligence gathering, but there need to be parameters for what is considered fair game. There must be clarity on important definitions relating to personal data. I hope that the Minister will respond in the constructive spirit in which the amendment was intended.

[Stuart C. McDonald]

Clause 2 will remove the need for further judicial authorisation for personal dataset retention and examination if the datasets are deemed to fit into the low or no category, for which there is already authorisation, or if there is urgency. Many personal datasets can be contained within one warrant, so we have lots of questions about how proposed new part 7A will work. Amendment 14 demands an explanation of how the regime fits alongside data protection standards and how it applies to leaked and hacked datasets, as opposed to those that are lawfully obtained.

Our amendment 21 simply seeks to push the Minister to give examples of personal datasets that would be considered to have a low or no reasonable expectation of privacy. I refer hon. Members to a letter from the Chair of the Joint Committee on Human Rights, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), which has been shared with us all:

“There is perhaps some ambiguity or confusion as to what data is envisaged to be caught by these provisions. For example, is it merely online encyclopaedias, Companies House registers or news articles; or would it also cover, for example, quite extensive discussions over the internet or mass voice or face images, as has been mentioned in evidence?”

That is the question that we are getting at here.

The whole concept of a reasonable expectation of privacy seems to have been borrowed from the US, where it has been criticised for permitting fairly intrusive surveillance at quite a considerable scale. To my mind, it difficult to grasp the concept or even understand how the test to be applied. It is bad not just for citizens in general, but for people who are having to make these decisions who are not absolutely clear whether or not they can consider a set of data to have a low or no expectation of privacy.

Would bulk datasets of CCTV images or Facebook posts be no/low? How can someone assess whether a bulk personal dataset falls into the category if they do not know all the information within it because they cannot see it until they have a warrant? If the dataset contains information about many thousands or millions of people, with different types of information about different people, how can there be one single level of expectation? People with a low expectation of complete privacy might reasonably have a high expectation that their data will not be retained and processed by the intelligence services.

Why is the sensitivity of the data not expressly mentioned in the Bill? That should surely be pivotal, particularly if the Government want to operate within our human rights obligations. There is no clarity in the Bill to reassure us that sensitive information such as health data would absolutely not be captured by these provisions. Why could that not be on the face of the Bill? Why is publication the important factor instead? Publication in the context of small Facebook groups, for example, does not mean that there are no expectations that security services would not hold that information.

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[Dan Jarvis]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 22, in clause 2, page 4, leave out lines 27 to 30.

This amendment is consequential on Amendment 23.

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[Stuart C. McDonald]

Again, I get all that, and I do not think that we are really at cross-purposes. However, we are talking about 12 months of access to datasets without necessarily having them before a judicial commissioner.

I do not think that anyone disputes that this is a slightly weaker form of oversight, which is because the services want to access this material at scale and regard the existing oversight mechanisms as cumbersome, slow and whatever else. We still ask the question of whether there is another way to do that that would still involve judicial commissioners but happen much more randomly and at scale. However, we will go away and consider that. I repeat my request—I know it is not easy—for some examples to reassure members of the public on how exactly this will work. That would be useful. In the meantime, I do not intend to push the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Dan Jarvis]

I beg to move amendment 15, in clause 2, page 5, line 14, at end insert—

“(4) The head of an intelligence service, or a person acting on their behalf, must notify the Investigatory Powers Commissioner as soon as is reasonably practical after a decision has been taken to include a bulk personal dataset within a category authorisation in effect under this section.”

This amendment would require that the Investigatory Powers Commissioner is notified when a new bulk personal dataset is added by an intelligence agency to an existing category authorisation.