I am obliged to noble Lords. I know that these are probing amendments and I shall address them in that light. Of course some of these amendments were discussed in the other place and, as noted, were considered again by this Committee in the context of interception.
Amendments 158D to 158M and 169B to 169T would remove the ability of the warrant-requesting agencies to apply for a warrant against an organisation, a group of persons with a common purpose, or a group of persons carrying out the same activity. They would require a warrant to name or identify each person or piece of equipment to which the warrant relates and they would remove the ability to obtain warrants for testing and training activity. As I have already set out when we considered similar amendments in the context of interception, it is important that those responsible for keeping us safe have the powers they need. These amendments would undermine their ability to employ those powers.
Let me start with the amendments regarding unique identifiers. As I explained in the context of interception warrants, it is not always possible at the outset of an investigation to know or have identified all of the individuals who may be subject to a warrant over the course of that investigation. The example of a kidnap gang applies to equipment interference just as it applies to interception. When a warrant is granted against a gang, the person applying for the warrant may not know that there are four members of the gang rather than three. The ability to grant a warrant against the gang in order to establish its size and to identify co-conspirators is precisely why the Bill provides for thematic warrants. Thematic warrants are already available to the equipment interference agencies under the Intelligence Services Act 1994 and the Police Act 1997 and they are invaluable when investigating complex or fast-moving threats. It is right that the Bill should not undermine their ability to do this.
I would seek to reassure your Lordships that the Bill already provides in Clause 107 that the warrant has to describe the relevant persons, locations, activity or groups and the type of equipment to which the warrant relates in so far as it is reasonably practicable to do so. This is an important safeguard which will assist the oversight of thematic targeted warrants. The Investigatory Powers Tribunal recently considered the use of equipment interference in this way. It determined that,
“a warrant is lawful if it is as specific as possible in relation to the property to be covered by the warrant”,
and that,
“it need not be defined by reference to named or identified individuals”.
Let me turn to the amendments that seek to remove the ability to grant a warrant relating to particular subject matters. This was also discussed at some length in the other place and very recently in this Committee, again in the context of interception. Such a change would be operationally damaging and is moreover unnecessary. The Bill and the statutory code of practice impose strict limits on the issue of warrants, including in relation to organisations or groups of persons. I should emphasise that such warrants are not open-ended. Their scope must be sufficiently limited that the issuing authority can properly assess the necessity and proportionality of the interference. Further, under the Bill a judicial commissioner will need to approve the issuing authority’s decision. So the clause does not allow for overly broad warrants to be issued. Moreover, removing the ability to seek warrants against persons carrying out the same activity could prohibit the agencies from, for example, seeking a warrant against individuals accessing a particular website in order to access child abuse images. In such cases it is vital that law enforcement should be able to identify suspects and bring them to justice.
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I turn now to the question of testing and training warrants and perhaps I may briefly restate our concerns regarding the amendments to remove the ability to apply for a warrant for testing or training purposes. This would be damaging operationally and would also result in a reduction in safeguards. It is vital that those
who are authorised to undertake equipment interference are able to test new equipment and to make sure that those responsible for using that equipment are properly trained in its use. Without the ability to test equipment, we will simply increase the risk of mistakes being made where individuals are not able to receive adequate training in its use. The warrant application process in these circumstances allows the Secretary of State to understand the potential risk that data will be acquired incidentally and to agree the measures to be taken to reduce the risk. Indeed, material obtained under a testing or training warrant must be handled in accordance with the same safeguards as any other material, and that includes that such material must be destroyed when retaining it is no longer required for one of the statutory purposes. I would suggest that appropriate safeguards are already in place.
I will move on now to Amendments 158A to 158C, which refer to Clause 93. Clause 93 sets out the categories of data that may be acquired under an equipment interference warrant. These categories are “communications”, “equipment data” and “other information”. This clause makes it clear that a warrant must specify what categories of data are to be acquired through the proposed interference. Perhaps I may be allowed to explain briefly what each of these categories means and why it is appropriate to set them out in this way. I will begin with “communications”’. The definition is straightforward and appears throughout the Bill, and for Part 5 it is defined in Clause 126. An equipment interference warrant may be authorised to obtain communications that are “at rest”, such as an email saved on a suspect’s hard drive or a text message that is stored on his mobile phone. An equipment interference warrant may not authorise the obtaining of communications in real time, such as the interception of a telephone call; that would need to be authorised under an interception warrant.
“Equipment data” is defined in Clause 94. It comprises data that are typically less intrusive, such as the subscriber identification number associated with a SIM card. In some cases the security and intelligence agencies may need to acquire such data through an equipment interference warrant. Clause 93 allows for a warrant to be issued for this activity, and again this is an important privacy safeguard. It means that some equipment interference warrants will only authorise the acquisition of less-sensitive data.
Finally, the term “other information” reflects the fact that not all of the data that may be acquired through equipment interference will be either communication or equipment data. For example, an illegal image saved on a criminal’s hard drive may not constitute a communication if it has not yet been disseminated via the internet. It is of course vital that the police are able to identify such material in the course of a covert investigation, including through the use of equipment interference techniques. Such data would fall under the heading of “other information”. The proposed amendment seeks to narrow the clause, thus preventing the equipment interference agencies from applying for an equipment interference warrant where the purpose is to acquire “other information”. We consider that such an amendment would be a mistake because of the example that I have just given.
It is right that equipment interference agencies should be permitted to obtain information that does not fall into the categories of either communications or equipment data. It is also vital that the equipment interference agencies are able to fully investigate potential serious crime or national security threats subject to the rigorous safeguards and oversight provided by the Bill. I will reiterate this because, for example, it would severely detract from the equipment interference agencies’ current powers if they were to be prohibited from examining material that a suspected terrorist had hidden on a hard disk simply because the subject had not communicated the information. I hope that assists in explaining “other information”. The term should not be taken to imply that a warrant could be open-ended—that it could authorise the acquisition of data not described in the warrant. As well as describing the category of information that may be obtained under a warrant, Clause 107 makes clear that the warrant must specify the precise conduct to be undertaken, and a warrant for other information is simply one aimed at obtaining data that are not or not only communication or equipment data.
Clause 93 sets out the categories of information that may be obtained through the proposed interference. It envisages that some warrants will be permitted only for the acquisition of less intrusive equipment data. Equally, in some cases, the circumstances may merit the use of techniques to obtain communications or other data from a suspect’s device. That provides a clearer regime than the current statutory framework and indeed, for stronger privacy protections. Accordingly, I invite the noble Lord to withdraw his amendment.