My Lords, our Amendment 78 in this group seeks to make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the internet protocol address. The amendment is not meant to impact on the rest of the Data Retention and Investigatory Powers Act.
Clause 17 amends the definition of “relevant communications data” in the Data Retention and Investigatory Powers Act 2014. The clause expands the definition of “relevant communications data” to include an extra category of data—described as “relevant internet data”—in Section 2 of the DRIP Act, to allow the Secretary of State to use powers under Section 1 of that Act to bring in regulations to ensure that this “relevant internet data” is retained by communications service providers. Essentially, the Government are using this fast-track primary legislation to amend emergency primary legislation from last July to enable the Secretary of State to bring in secondary legislation relating to a clause in this Bill, which extends the current provision on data retention.
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The change in the rules on data retention is, it seems, a response to the increasing incidence of one IP address being allocated to numerous devices. I stress that we accept that this extra category of data will be an important tool for law enforcement, including protection of national security. Many providers currently have no business reason for keeping a log of who has used each address. It is therefore not always possible for the law enforcement agencies accessing the data to identify who was using an IP address at any specific point in time.
Amendment 78 is designed to ensure that the text of Clause 17 matches the explanation given in the Explanatory Notes: that the extra data is only that needed to,
“allow relevant authorities to link the unique attributes of a public Internet Protocol (IP) address to the person (or device) using it”.
In Committee in the other place, the Home Office Minister said that the Bill already limited the scope of Clause 17 in the way proposed in this amendment. The Government also said that they did not intend to issue new regulations following on from this Bill because the change in the definition of “relevant communications data” would alter the meaning of the 2014 regulations. Therefore, the combination of this primary legislation and the existing secondary legislation is meant to be sufficient to bring about a change in the types of data retained by communications service providers. Our view is that this could create confusion in interpreting the regulations, which we surely want to avoid. We believe it would be better if the Government accepted the amendment to achieve clarity.
We also have concerns about how we can allow for the retention of internet protocol address information without demanding the retention of web logs. Clause 17 is meant to cover the identifier for the recipient of a communication. That is supposed to cover e-mails, but not web logs. Can the Minister explain how communications will be separated from web logs, bearing in mind that, for example, a distinction would have to be made between visiting a web page and using that page to send an e-mail?
In addition, what is the definition of “a communication”, including in relation to contact on social media? Does receiving a Facebook “like” or a Tinder “match” count as “a communication” for these purposes? I hope the Minister can provide assurance that the legislation is sufficient to make distinctions of this kind regarding the apps and websites that so many people now use. On Report in the other place, the Home Office Minister said in response to the points we made, including the need to define a communication:
“A communication can include any message sent over the internet”.—[Official Report, Commons, 6/1/15; col. 236.]
That begs the question of what is the definition of a message in this context: does being tagged in a photo on Instagram count as “a communication”, which the Government now define as any message sent over the internet? What about being mentioned in a tweet: does that count as “a communication”? I hope that the Minister will be able to give a definition of what is and is not included as any message sent over the internet, now that the Government have given that as the definition of a communication.
At Report stage in the other place the Home Office Minister said that if he had any further reflections on the points that we had raised, he would write further. No subsequent letter has surfaced from him. As well as responding to the questions I have raised, perhaps the Minister here will say whether we will or will not be receiving a further letter from the Minister in the Commons.