My Lords, I am conscious of the imprecation earlier from the noble Lord, Lord Stevenson of Balmacara, that we keep our contributions short, but I intend to take no notice of it. That is for the very good reason that I do not think the public would understand why we disposed of such a momentous matter as bringing to an end end-to-end encryption on private messaging services as a mere technicality and a brief debate at the end of Report.
It is my view that end-to-end encryption is assumed nowadays by the vast majority of people using private messaging services such as WhatsApp, iMessage and Signal. They are unaware, I think, of the fact that it is about to be taken from them by Clause 111 of the Bill. My amendment would prevent that. It is fairly plain; it says that
“A notice under subsection (1)”
of Clause 111
“may not impose a requirement relating to a service if the effect of that requirement would be to require the provider of the service to weaken or remove end-to-end encryption applied in relation to the service”.
My noble friend says that there is no threat of ending end-to-end encryption in his proposal, but he achieves that by conflating two things—which I admit my own amendment conflates, but I will come back to that towards the end. They are the encryption of platforms and the encryption of private messaging services. I am much less concerned about the former. I am concerned about private messaging services. If my noble friend was serious in meaning that there was no threat to end-to-end encryption, then I cannot see why he would not embrace my amendment, but the fact that he does not is eloquent proof that it is in fact under threat, as is the fact that the NSPCC and the Internet Watch Foundation are so heavily lobbying against my amendment. They would not be doing that if they did not think it had a serious effect.
I shall not repeat at any length the technical arguments we had in Committee, but the simple fact is that if you open a hole into end-to-end encryption, as would be required by this provision, then other people can get through that hole, and the security of the system is compromised. Those other people may not be very nice; they could be hostile state actors—we know hostile state actors who are well enough resourced to do this—but they could also be our own security services and others, from whom we expect protection. Normally, we do get a degree of protection from those services, because they are required to have some form of warrant or prior approval but, as I have explained previously in debate on this, these powers being given to Ofcom require no warrant or prior approval in order to be exercised. So there is a vulnerability, but there is also a major assault on privacy. That is the point on which I intend to start my conclusion.
If we reflect for a moment, the evolution of this Bill in your Lordships’ House has been characterised and shaped, to a large extent, by the offer made by the noble Lord, Lord Stevenson of Balmacara, when he spoke at Second Reading, to take a collaborative approach. But that collaborative approach has barely extended to those noble Lords concerned about privacy and freedom of expression. As a result, in my view, those noble Lords rightly promoting child protection have been reckless to the point of overreaching themselves.
If we stood back and had to explain to outsiders that we were taking steps today that took end-to-end encryption and the privacy they expect on their private messaging services away from them, together with the security and protection it gives, of course, in relation to scams and frauds and all the other things where it has a public benefit, then I think they would be truly outraged. I do not entirely understand how the Government think they could withstand that outrage, were it expressed publicly. I actually believe that the battle for this Bill—this part of this Bill, certainly—is only just starting. We may be coming to the end here, but I do not think that this Bill is settled, because this issue is such a sensitive one.
Given the manifest and widespread lack of support for my views on this question in your Lordships’ House in Committee, I will not be testing the opinion
of the House today. I think I know what the opinion of the House is, but it is wrong, and it will have to be revised. My noble friend simply cannot stand there and claim that what he is proposing is proportionate and necessary, because it blatantly and manifestly is not.