Warrants that may be issued under this Chapter

Investigatory Powers Bill – in a Public Bill Committee at 10:45 am on 12th April 2016.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 10:45 am, 12th April 2016

I beg to move amendment 57, in clause 13, page 10, line 16, after “content”, insert “or secondary data”

This amendment, and others to Clause 13, seek to expand the requirement of targeted examination warrants to cover the examination of all information or material obtained through bulk interception warrant, or bulk equipment interference warrant, irrespective of whether the information is referable to an individual in the British Islands. They would also expand the requirement of targeted examination warrants to cover the examination of “secondary data” obtained through bulk interception warrants and “equipment data” and “information” obtained through bulk equipment interference warrants.

With this it will be convenient to discuss the following:

Amendment 58, in clause 13, page 10, line 17, leave out from “examination” to end of line 18

Amendment 59, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert

“of material referable to an individual known to be in the British Islands at that time, or British citizen outside the British Islands at that time.”

Amendment 60, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert

“of material referable to an individual known to be in the British Islands at that time, or British, Canadian, American, New Zealand or Australian citizen outside the British Islands at that time.”

Amendment 83, in clause 13, page 10, line 22, after “6”, insert—

“In this Part “secondary data” means—

(a) in relation to a communication transmitted by means of a postal service, means any data falling within subsection (5);

(b) in relation to a communication transmitted by means of a telecommunication system, means any data falling within subsection (5) or (6).”

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I rise to speak to amendments 57, 59 and 60. Amendment 57 deals with secondary data; amendments 59 and 60 deal with place and whether someone is in the British Isles. I apologise, Ms Dorries: the provision and the amendment are complicated. With your permission I will take some time to set the context so that the amendment can be understood.

Clause 13 deals with warrants. Subsection (1) deals with targeted interception warrants, targeted examination warrants and mutual assistance warrants. Subsection (2) states:

“A targeted interception warrant is a warrant which authorises or requires the person to whom it is addressed to secure, by any conduct described in the warrant, any one or more of the following”,

and paragraph (a) deals with the interception of communications. That is content; paragraph (b) deals with secondary data from the communication; and paragraph (c) deals with disclosure. For targeted warrants under clause 13 there are specific provisions in relation to the content, secondary data and disclosure.

Secondary data for these purposes is further defined in clause 14, subsection (5) of which states:

“The data falling within this subsection is systems data which is comprised in, included as part of, attached to or logically associated with the communication”,

so it has an integral link to the communication and thus to the content.

Order. Mr Starmer, if you could keep your comments to clause 13 with just passing reference to clause 14 and further clauses, that would be great.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 11:00 am, 12th April 2016

I will, but on this particular occasion, I really think it is almost impossible to understand clause 13(3) without going into clause 14 and then, I am afraid, to a further provision, before coming back.

You can only do so in passing reference.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

In passing, this is just really to explain what the amendment is intended to achieve. In order to understand what is in clause 13(2), we need to look to clause 14(4) to (6), which set out what secondary data means for the purposes of this part and, thus, is to be read into clause 13.

Clause 14(6) states:

“The data falling within this subsection is identifying data which…is comprised in, included as part of, attached to or logically associated with…is capable of being logically separated…and if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning”,

so it is integrally bound up with the content of the communication but capable of being separated from it.

So far as clause 13 is concerned, if there is a targeted interception warrant, the warrant deals specifically with content and secondary data, recognising the integral link between the two. That is right and we do not quarrel with that.

Clause 13(3) is different, providing that:

“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of relevant content for examination, in breach of the prohibition in section 134(4) (prohibition on seeking to identify communications of individuals in the British Islands).”

The purpose of clause 13(3) is different. We move from the targeted warrant to the bulk warrant—an examination warrant that provides authority to examine the content that would otherwise be in breach of clause 134(4). In order to understand that, I take the Committee to clause 119, to which that relates.

Clause 119 deals with bulk interception warrants, which can be issued if conditions A and B are satisfied. Condition A deals with

“the interception of overseas-related communications” and with “obtaining…secondary data”. The definition of secondary data is the same in that part of the Bill as it is in the part that we have just looked at. I will not test the Committee’s patience by going to that definition, but it is a consistent definition of secondary data.

Condition B sets out that the bulk warrant authorises “the interception”, which is the content,

“the obtaining of secondary data”,

which is the same as a targeted warrant but in relation to the bulk powers, and

“the selection for examination, in any manner described…of…content or secondary data” and “disclosure”. The bulk warrant allows the interception of the content and secondary data. In and of itself, it provides for the examination on the face of the same warrant.

For content, it becomes more complicated because there is a safeguard, which is in clause 134(4)—safeguards in relation to examination materials. Having provided a broad examination power, there is then a safeguard for that examination power in clause 134(4). A number of conditions are set for examining material that has been obtained under a bulk interception warrant. They are set out in subsection (3) and the first is that

“the selection of the intercepted content for examination does not reach the prohibition in subsection(4)” which is that

“intercepted content may not…be selected for examination if— any criteria used for the selection of the intercepted content…are referable to an individual known to be in the British Islands at that time, and the purpose of using those criteria is to identify the content”.

The long and short of it is that, going back to clause 13, a targeted intercept warrant authorises the examination of both content and secondary data.

For a bulk warrant—this is where clause 13(3) kicks in—there is provision for an examination warrant which provides an ability to look at the content, which in all other circumstances would be a breach of the prohibition in clause 134. The content of communications of individuals in the British Isles can be looked at when it has been captured by a bulk provision, but only when there is a targeted examination warrant. That is a good thing.

What the amendment gets at is this. What is not in clause 13(3) is any provision for an examination warrant in relation to secondary data, so for the targeted provisions these two are treated as one: secondary data integral to the content of communication. When it comes to bulk, they are separated and only the content is subject to the further provision in clause 13(3).

That is a material provision and is a big part of the legislation because, unless amendment 57 is accepted, a targeted examination warrant is not required for secondary data, which are capable of being examined simply under the bulk powers. The purpose of the amendment is to align subsections (2) and (3) and ensure that the targeted examination warrant is not required for both content and secondary data in relation to individuals in the British Isles. The result otherwise would be that, for someone in the British Isles, their secondary data could be looked at as long as it was captured under a bulk provision without a targeted warrant. That is a serious drafting issue of substance.

Our approach to some of the wider retention of bulk powers is this. Although we accept that a case can be made for retaining data that will be looked at later, the wide powers of retentional bulk are a cause of concern on both sides of the House. When it comes to examining what has been caught within the wider net, there are specific safeguards. In other words, as long as there is a specific targeted safeguard when someone wants to look at bulk or retained data, that is an important safeguard when they are harvesting wide-ranging data. That is a very important provision in relation to secondary data.

Amendments 59 and 60 go to a different issue. They are separate and I ask the Government to treat them as separate. The first is about content and secondary data as a hom-set and whether they should be protected in the same way throughout the regime of the legislation, however they are initially intercepted. That is an important point of principle that I ask the Government to consider seriously because it goes to the heart of the question of targeted access.

The second amendment relates to individuals in the British Isles. At the moment, clause 13(3) provides specific protection in relation to the content of communications for people in the British Isles. It is clear from clause 134(4) that that means not residing in the British Isles, but actually in the British Isles. Under clause 13(3), once I get to Calais, I fall out of the protection of that provision, as does everybody else in this Committee, because it is a question of whether someone is physically in the British islands. Therefore, a targeted examination warrant for the content of my communications gathered by bulk powers would not be needed once I got halfway across the channel. Until I went through the analysis, I did not fully appreciate that, and serious consideration is required for both content and secondary data. More generally within amendment 59 are provisions relating to individuals not normally in the British islands or within the countries specified in amendment 60.

I am sorry to have referred to other clauses, but I could not work this out until I went through that torturous route. The net result is a disconnect between content and secondary data, which goes to the heart of protection when it comes to bulk powers. Clause 13(3) is really important for bulk powers and is one of the most important provisions in the Bill, so we have to get it right.

The limit of clause 13(3) to individuals in the British islands is unsustainable and needs further thought. Amendments 59 and 60 intend to remedy that defect. If there is an appetite in the Government to look carefully at those provisions, there may be a different way of coming at the problem, but it is a real flaw in the regime as it is currently set out. I apologise for taking so long to get to that, Ms Dorries. It required a cold wet towel on one afternoon last week to work my way through this, but once we go through the exercise, we realise there is a fundamental problem that either has to be fixed or adequately answered.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I am 100% with the hon. and learned Gentleman in his description of the clause. Indeed, many clauses of the Bill require the application of a cold wet towel or a bag of ice to the head followed by copious amounts of alcohol later in the evening.

Amendments 57 and 83 bear my name and that of my hon. Friend the Member for Paisley and Renfrewshire North. I wish to emphasise the importance of those amendments, which foreshadow important amendments in respect of bulk powers that the Scottish National party intends to table at a later stage. Our amendments would apply the same processes and safeguards for the examination of information or material obtained through bulk interception warrants and bulk equipment interference warrants, irrespective of whether the information or material pertains to individuals in the British Isles, and to require a targeted examination warrant to be obtained whenever secondary data obtained through bulk interception warrants and equipment data and information obtained through bulk interference warrants are to be examined.

In order to gain an understanding of the background to this amendment, I invite hon. Members to look back at the evidence of Eric King to the Committee on 24 March. He explained to us how GCHQ examines bulk material. The targeted examination warrant available on the face of the Bill fails to cover the aspect of communication that is most used by agencies such as GCHQ: metadata, or secondary data, as it is referred to in the Bill.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

The hon. and learned Lady might have chosen a better witness. If I recall, the gentleman in question admitted in answer to my hon. Friend the Member for Louth and Horncastle that he had had no experience at all in the application for or determination of any warrants. He had never had any security clearance either, so I am uncertain why he is being prayed in aid.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I must say that I do not like the approach of traducing witnesses. If I do not like a witness’s evidence, I will not traduce them; I will just try to forensically dissect their evidence. This is a distinguished witness with significant experience in this field.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 11:15 am, 12th April 2016

No, I will not give way. I am going to finish. Because of his technical expertise, Mr King has been of enormous assistance to myself and my hon. Friends in the Labour party in drafting amendments.

Ah!

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

Hon. Members may “Ah” and “Um”, but Mr King has relevant technical expertise. I invite hon. Members to consider his CV.

Photo of Victoria Atkins Victoria Atkins Conservative, Louth and Horncastle

Will the hon. and learned Lady give way on that point?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

No, I will not. I will continue to make my point. The amendment was tabled because there should be a requirement to apply for an examination warrant when seeking to examine secondary data. That would protect the privacy of our constituents—I am looking at Government Members—and us. It is not some idle attempt of the chattering classes to be difficult about the Bill; it is an attempt to make the Bill compliant with the rule of law and with the requirement to protect the privacy of our constituents. That is all it is about. Criticising and making ad hominin comments about a witness are not going to undermine the moderate—

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

No, I will not give way. There will be plenty of opportunity for the hon. Lady to contribute later. I am conscious of the time, Chair, so I will briefly—

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

Will the hon. and learned Lady give way on that point?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

No, I will not. I want to continue making my point. Without the amendment, which we support, a GCHQ analyst would be able to search for and view non-content material of anyone in the United Kingdom without a warrant. I do not believe that that is right, necessary or proportionate.

Let us look at what the Intelligence and Security Committee said. If Government Members do not like Mr King’s evidence, let us set him to one side and look at the ISC. Government Members might find its approach more palatable or less easy to criticise. In the ISC’s response to the draft Bill, it highlighted the significant concern that the secondary data, including that derived from content, would not be protected. It said:

“To provide protection for any such material incidentally collected, there is a prohibition on searching for and examining any material that relates to a person known to be in the UK (therefore, even if it is collected, it cannot be examined unless additional authorisation is obtained). However, these safeguards only relate to the content of these communications. The RCD relating to the communications of people in the UK is unprotected if it is collected via Bulk Interception. In direct contrast, if the same material were collected and examined through other means (for example, a direct request to a CSP) then the draft Bill sets out how it must be authorised”.

The ISC expressed a concern that the amendment attempts to address. Because no examination warrant is required for secondary data, a variety of highly intrusive acts could be undertaken without additional authorisation by individual analysts. That is all that the amendment is seeking to address. In my respectful submission, it is appropriate, necessary and proportionate.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

As the hon. and learned Gentleman was speaking—he recalled having a cold towel placed upon him last week—I wondered, as his peroration ranged across so many different clauses of the Bill, whether he wished the same fate for the whole Committee, although I fully appreciate his point on the complexities of this particular area of our consideration. They are such that, to get to the basis of why he tabled the amendments, it is necessary to look across a range of parts of the Bill.

In essence, this is probably the difference between us—perhaps it is not, but let me present that at least as my hypothesis. We recognise, as the Bill reflects that different levels of authorisation should apply in relation to different investigative techniques. I think the hon. and learned Gentleman is with us that far, but it is important to say why those different levels should apply. The differences plainly reflect the different operational contexts in which the powers are exercised, and that includes the different organisations, how they use the capabilities, and the statutory purposes for which those capabilities are utilised. We are absolutely clear that those differences are necessary, and that the safeguards that apply to different powers are satisfactory, coherent and effective.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I have checked the evidence, and perhaps the Minister can tell the Committee why it is necessary to distinguish between the protection offered to content and secondary data in relation to bulk warrants, when it is not necessary for targeted warrants. They are treated exactly the same for targeted warrants, but he says that it is necessary to distinguish between them for bulk warrants. What is the necessity? Can he spell it out, please?

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I will try to do that during my response. If one recognises that a different process should apply in the exercise of different powers, contextualised around the operational function of the organisations that are exercising the powers and the purposes for which the powers are being exercised, one begins to appreciate that what might, at first reading, look like inconsistency is not an error or an inconsistency but is a necessary application of different sets of both powers and safeguards for different needs. I will address the hon. and learned Gentleman’s specific point as I go through my response.

Amendment 57 would extend the requirement to obtain a targeted examination warrant to circumstances in which an agency wishes to select for examination the secondary data, as opposed to content, relating to the communications of an individual who is known to be in the UK when the data have been obtained under a bulk interception warrant. Essentially, secondary data are less intrusive than content; their collection and the circumstances in which they may be examined are directly subject to double-lock authorisation. Furthermore, it is necessary to say that it is sometimes important, indeed essential, to examine secondary data to determine whether someone is in the UK. That does not provide an entire answer to the hon. and learned Gentleman’s question on the difference, but it provides some answer to the argument about where someone resides at a given point in time.

The targeted acquisition of communications data, provided for in part 3 of the Bill, including data relating to individuals in the United Kingdom, currently requires the designation of an authorised person within an organisation. The hon. and learned Gentleman acknowledged that we have taken further steps, which I will talk about later, following the recommendations of David Anderson—forgive me, but this is quite a complex area, and I need to go into it in some detail.

In contrast, bulk interception warrants, which authorise the collection of communications in bulk and set out the circumstances in which material that has been collected can be selected for examination, are subject to the double-lock authorisation of both the Secretary of State and a judicial commissioner. That means that the acquisition of content and secondary data, and the operational purposes for which any of the data can be selected for examination, is explicitly authorised by the Secretary of State and a judicial commissioner when the warrant is approved. The agencies can only select material for examination when it is necessary and proportionate to do so, in line with one or more operational purposes authorised when the warrant is granted.

Where the security and intelligence agencies wish to look at the content of the communications of an individual in the United Kingdom under a bulk interception warrant, they will need to obtain a targeted examination warrant, which reflects the recommendations from the independent reviewer, David Anderson. I draw attention to his report, “A Question of Trust,” with which members of the Committee will be familiar. The report addresses precisely this point in recommendations 79 and 80 on the use of material recovered under bulk warrants. The regime reflects the well-recognised distinction between less intrusive data obtained through these powers and content—

The Chair adjourned the Committee without Question put (Standing Order No. 88).