The amendments in this group relate to issues which have been raised by service providers, and are all largely probing amendments to ascertain the Government’s response for the record.
As has already been said, Clause 2 addresses, “General duties in relation to privacy”, for a public authority—including the relevant judicial authority—in connection with the issuing of warrants and notices, and sets out the considerations to which the public authority must have regard.
Amendment 25A, the first in the group, provides for a new clause after Clause 2, which would allow companies served with a warrant or notice, whether complied with or not, to publish figures in aggregate for warrants and notices received in the previous 180 days. The point of the amendment is to pursue the issue of transparency where there has been engagement between companies and law enforcement and government agencies under the provisions of the Bill. Such transparency would also appear to be a prerequisite for redress, should the way in which the powers in the Bill are being used be called into question.
In America, the USA Freedom Act significantly reforms the transparency of US surveillance laws, and this amendment is based on part of the provisions of that Act. There seems no reason why there should not be the facility for the level of transparency called for in this amendment, which would enable providers to publish statistical data about the number of warrants received and those given effect to. Not only does this amendment give the Government the opportunity to respond to the specific terms of the amendment, but it will enable the Government to say what their intentions are for providing a clear framework for transparency under the Bill in the light of the USA Freedom Act.
The Minister made reference in an earlier debate to the letter that had been sent to my noble friend Lord Rooker in relation to the privacy clause. Towards the end of that letter, dealing with the last of the 10 tests to which reference was made in an earlier amendment, the letter said:
“The Bill also provides for the Secretary of State to designate international agreements under which cross-border requests for information can be made. This will ensure in the future that our protections and safeguards for requests for data under the legislation are capable of being harmonised with like-minded open and democratic Governments”.
The letter went on:
“As the Home Secretary made clear during the Bill’s passage in the House of Commons, we are seeking to negotiate a bilateral agreement with the US to this end”.
It would be quite helpful if the Minister was able to say in response what is the likelihood of the bilateral agreement with the United States of America being achieved, and within what kind of timespan.
I shall move on to the other amendments in the group. Amendments 63, 64 and 65 relate to Clauses 39 and 41. Clause 39, on “Implementation of warrants”, provides that the person who has obtained the warrant—that is, the head of the intercepting agency—may require other persons to assist in giving effect to a targeted interception warrant or mutual assistance warrant. Clause 39(4) provides:
“A copy of a warrant may be served under subsection (3) on a person outside the United Kingdom for the purpose of requiring the person to provide such assistance in the form of conduct outside the United Kingdom.”
Amendment 63 amends Clause 39 to exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the United
Kingdom and the provider’s jurisdiction. It also serves to establish international mutual assistance agreements, of the kind recommended by Sir Nigel Sheinwald, the fast-departing Prime Minister’s special envoy on intelligence and law enforcement data sharing. It seeks to establish international mutual assistance agreements of the kind that he recommended—as currently under negotiation with the US Government—as the primary route by which UK agencies obtain data from overseas communication service providers. The amendment would continue to enable the imposition of warrants on communication service providers in non-mutual legal assistance countries.
Clause 41, on the “Duty of operators to assist with implementation”, provides that a telecommunications or postal service provider served with a target interception warrant or mutual assistance warrant is required to take steps to give effect to it. This obligation applies whether or not the operator is in the United Kingdom. Subsection (4) ensures that the steps a service provider is required to make must be “reasonably practicable”, and subsection (5) provides that, in considering what is reasonable,
“any requirements or restrictions under the laws of the country”,
in which an operator is based must be taken into account.
Amendments 64 and 65 would amend Clause 41 by seeking to establish a reasonableness test for overseas communication service providers. They would also establish international mutual assistance agreements, where they exist, as the primary route to obtain data from these communication service providers. The amendments would also give effect to the Government’s commitment that enforcement powers should not be applicable where an overseas communication service provider is acting under the auspices of an international agreement. The amendments to Clause 41 state that a relevant operator is not required to take any steps which it is not reasonably practicable for the relevant operator to take which, for a relevant operator outside the United Kingdom shall include,
“any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services”.
There is a fairly widely held view that the current international legal framework by which UK agencies obtain data from overseas providers needs updating. Sir Nigel Sheinwald recommended that the UK Government engage like-minded Governments to conclude new mutual assistance agreements, which address conflicts of law and provide a sustainable and workable approach for UK agencies to obtain content data from overseas providers. It appears some progress is being made with the US Government towards such an agreement. The Bill currently provides UK agencies with several options to seek data from overseas providers, including mutual legal assistance treaties, the mutual legal assistance convention, international agreements of the kind recommended by Sir Nigel Sheinwald, and service of a UK warrant extraterritorially.
The unilateral assertion of UK jurisdiction overseas risks creating a conflicting world of laws and a difficult and uncertain environment for local staff of overseas companies in the UK and UK companies abroad. The
Bill does not direct agencies as to which power to use under what circumstances, and that is an issue that these amendments seek to address. The new international assistance agreements are additional and complementary to mutual legal assistance treaties but, unlike such treaties, international assistance agreements would permit UK agencies to request data directly from overseas providers, in their home jurisdiction, without application to a local court. These amendments do not seek to push all requests through the existing mutual assistance treaties process.
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Amendment 65 also relates to Clause 41, on the “Duty of operators to assist with implementation”. The purpose of this amendment is to provide added protections against locally based staff being at risk of sanction for decisions that they do not make. International companies do not always store data in the same countries where they have employees. However, employees in countries other than those where data are stored may need access to data in the course of their employment. As such, these individuals may be technically capable of complying with a request for data. One concern for major companies is that local staff are increasingly vulnerable to being held liable to decisions made by their parent company. That can also be used as a very direct way in which to apply pressure to comply with requests even when there may be a conflict of law.
The effect of Amendment 65A is to make it clear that there is a statutory defence of non-compliance with a warrant when the individual concerned is not authorised to provide data by the company legally controlling it. The amendment seeks to provide legal clarity and ensure that the Bill does not set a precedent for local staff to be held accountable in other jurisdictions.
Amendments 82 and 83 in this group relate to Clause 54, on the “Duty not to make unauthorised disclosures”. Subsection (1) of the clause provides that:
“A person to whom this section applies must not make an unauthorised disclosure to another person”.
Amendment 82 would add in the words, “without reasonable excuse”. Amendment 83 would insert a new subsection, stating that,
“it is, in particular, a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued”.
The amendments would add the reasonable excuse defence to the unauthorised disclosure offence and expressly provide that the defence applies whether permission is given by the person issuing the warrant or the person to whom it is issued.
Other amendments in this group, Amendments 174 and 175, would extend the reasonable excuse defence to the unauthorised disclosure obligation in relation, for example, to equipment interference warrants. On the face of it, there appears to be no reason why there should not be a reasonable excuse defence, particularly covering the specific instances referred to in the amendments in this group, and I await the Government’s response.
Clause 55 sets out the meaning of “excepted disclosure”, as referred to in Clause 54(2)(b). The clause deals with the duty not to make unauthorised
disclosures and an excepted disclosure cannot be an unauthorised disclosure. Clause 55(7) sets out excepted disclosures under the heading in the Bill,
“disclosures of a general nature”.
Amendments 84A and 84B expand the protection offered as an excepted disclosure by removing what could be regarded as the narrowing provision of Clause 55(7)(a) and extending the remaining provision to include warrants as also described in Clause 54(2)(a)(i) and Clause 54(2)(a)(ii). It is not clear why a distinction is drawn between the wording in Clause 54 and Clause 55 in that regard.
Finally, Clause 228 provides further details about national security notices and technical capability notices. The power to issue a technical capability notice has extraterritorial effect under Clause 226(8) and can be enforced against an overseas provider under Clause 228(10). There are a half a dozen or so powers which have extraterritorial effect. Of these, three are enforceable against overseas providers: targeted interception, targeted acquisition of communications data and bulk interception. The Secretary of State is required in all three cases to take into account requirements of the domestic law of the overseas provider and the extent to which it is reasonably practicable for a provider to comply with a notice. Amendments 104 and 105 would require the Secretary of State to apply the same consideration to applications for a technical capability notice and replicate the wording already used in Clause 41(5), which covers the duty of operators to assist with the implementation of warrants. These amendments would also appear to be relevant to Sir Nigel Sheinwald’s recommendation that the Government should engage with the Government concerned where there is a conflict of law rather than risk overseas providers facing an irreconcilable situation.
I think that has addressed all the amendments that I have down in this group. I will listen with interest to the Government’s response. From that response I hope to form a view about whether the amendments I have put down have real weight and merit or whether the Government can provide a satisfactory answer to the concerns behind them. I beg to move.