Investigatory Powers (Codes of Practice) Regulations 2018 — House of Lords, 2018-02-01
Topic: Mixed Topics
Susan Williams (Conservative, Centre-right): Sometimes the problem with interventions is that you do not get around to saying what you were going to say. Perhaps noble Lords will be patient. The noble Lord, Lord West, put it very succinctly and illustrated what we mean by bulk data Where the content of a communication is to be examined when it is of a person known to be in the British Isles, a separate targeted examination warrant must be obtained, which is in itself subject to approval by the Secretary of State and a judicial commissioner. The codes of practice that I have been outlining today provide additional safeguards on the use of bulk powers relating to filtering data, the training that must be obtained by those examining it and how bulk data should be handled, retained and destroyed The noble Lord, Lord Paddick, also asked if warrants allowed interference with devices of innocent people and asked how that was compliant with the ECJ ruling—the question on everyone’s lips. Equipment interference is subject to stringent safeguards and any warrant must be necessary and proportionate and must be approved by a judicial commissioner. This House has, of course, approved those strong safeguards I see the noble Baroness, Lady Chakrabarti, looking quite interested, because the noble Lords, Lord Paddick and Lord Butler, asked about the Liberty challenge to the IP Act and the Government’s response to it. The judgment handed down by the Court of Appeal on Tuesday this week—I presume that that is the one that they are referring to—relates to the challenge brought against the DRIP Act. It has now been replaced by provisions in the Investigatory Powers Act, and therefore the judgment relates to legislation that is actually no longer in effect. The provisions in the Act challenged by Liberty, which will be heard at the end of February in the High Court, relate to targeted communications data and, therefore, are not relevant to the debate today I move on to the technical capability regulations. I was asked whether they would stifle innovation. To be clear here, none of the regulations that we are discussing today in and of themselves place any burden on industry. To suggest that the Investigatory Powers (Technical Capability) Regulations 2018 would damage companies operating in this country is to misunderstand what the provisions in those regulations actually do. Those regulations do not themselves impose any requirements on telecommunications or postal operators. Rather, they set out what obligations could be imposed on an operator through a technical capability notice. The power for the Secretary of State to give such notice is set out in the Investigatory Powers Act itself, and has therefore already been approved by Parliament. There are stringent safeguards in the Act regulating the use of technical capability notices to minimise the impact on businesses, including that the notice must be necessary, proportionate and approved by a judicial commissioner. As I have already said, before giving a technical capability notice to a relevant operator, the Secretary of State must consult that operator. In addition, the Secretary of State must consider a number of factors before deciding to give a notice. Those factors include the technical feasibility and likely cost to the operator complying with the notice, which goes to the heart of ensuring that a notice does not damage a company’s interests The Act also makes it clear that the Secretary of State must ensure that arrangements are in force for securing that relevant operators receive an appropriate contribution in respect of their costs incurred in complying with the Act, as the Secretary of State deems appropriate. Such costs include those incurred in relation to complying with a technical capability notice. The Government’s policy is that the appropriate contribution is calculated on a case-by-case basis to ensure that the operator makes neither a loss nor a gain from complying with the Act. A number of the draft codes of practice that we have debated today include an entire chapter on technical capability notices, giving further information about their use, including details of the cost recovery process and the sorts of activities it is anticipated that the Government would fund as part of an operator maintaining a capability I may be repeating myself here, but the noble Lord, Lord Butler, asked about making sure that the codes of practice on retention records are made consistent with this week’s ruling. The judgment related to the retention of communications data by telecommunications operators is not being debated today. The CJEU ruling was not about safeguards for equipment interference or for access to bulk communications data. The IP tribunal considered the specific issue of whether the CJEU judgment applied to bulk communications data and has made a further reference to the CJEU on this very point and on whether the bulk communications data regime is within the scope of the judgment’s safeguarding requirements.