Meaning of “electronic data” and “excepted electronic data”

Crime (Overseas Production Orders) Bill [Lords] – in a Public Bill Committee am 10:15 am ar 18 Rhagfyr 2018.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 10:15, 18 Rhagfyr 2018

I beg to move amendment 11, in clause 3, page 3, line 46, at end insert:

“but shall not include bulk data”.

This amendment would prevent applications for bulk data under the Bill.

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee, Chair, Defence Sub-Committee

With this it will be convenient to discuss amendment 21, in clause 3, page 3, line 46, at end insert:

“but does not include bulk data”.

This amendment would exclude bulk data from the electronic material which can be made subject to an overseas production order.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

Amendment 11 is about safeguards on bulk data. Baroness Williams of Trafford spoke on this issue in Grand Committee on 5 September and explained why she felt that an amendment excluding bulk data was unnecessary:

“The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place,”.—[Official Report, House of Lords, 5 September 2018; Vol. 792, c. GC150.]

Put simply, there is a worry that under current safeguards it could be argued that bulk data was of substantial value to any criminal investigation and was in the public interest. This is a simple but discrete point regarding reassurances that bulk data will not be accessed by the powers in the Bill. The Government’s position, as set out in the other place, is that the safeguards there are sufficient to ensure that as the Bill stands, but I am hoping that the Minister will be able to set out and expand in greater detail on the reassurance given in the other place.

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales)

The amendment tabled by the hon. Member for Torfaen is probably more grammatically correct than mine—my high school English teacher would not be surprised by that—but the principle is exactly the same. Rigorous safeguards are required to ensure that overseas production orders are not open to abuse in terms of requesting access to bulk data.

As someone who suffered—served—on the Investigatory Powers Bill Committee, I used to read the excerpts on the levels of oversight on the various elements of bulk data collection and interception to help to put me to sleep at night; if this is a dry Bill, then the Investigatory Powers Bill, although incredibly important, was even drier. The Scottish National party held out strong opposition to bulk data collection, and it is important to explain why we tabled this amendment: to remind the Minister that we believe that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion.

Although the Government produced an operational case for bulk powers in between the draft Bill and the Bill as scrutinised in Committee, it was inadequate because it was largely anecdotal. We still firmly believe that such powers do not pass the legal tests of necessity and proportionality, and the additional test that the same results could not be achieved using more proportionate and less intrusive means. Two American Committees that asked to look at these Bills concluded that the same information could be obtained using more proportionate and less intrusive means.

Amendment 21 in my name is straightforward; the hon. Gentleman has already outlined many of the arguments and quoted Baroness Williams, but we agree that applications for bulk data lack a careful consideration of specifically which data is to be targeted. However, the Bill does not contain any express provision requiring orders to be targeted in the manner the Government describe. It is perfectly possible for officers to argue to the Government’s satisfaction that bulk data will be of substantial value to criminal investigations and in the public interest, given that the Government already regularly make arguments about why bulk powers are required in a wide variety of circumstances.

That assumption on the Government’s part does not amount to an adequate safeguard against the potential for bulk data to be requested under an OPO. Any access to routine daily surveillance of communications en masse should be expressly prohibited, and that is what the SNP amendment and the hon. Gentleman’s amendment are both intended to do. I urge the Minister to accept our amendment.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I hope I can put colleagues’ concerns to rest. The Bill does not provide for the acquisition of bulk data. The only means of acquiring bulk data is provided for in the Investigatory Powers Act 2016.

The test in clause 4 of this Bill clearly sets out that the power to obtain an overseas production order is to make a targeted request for specific data. When applying for an overseas production order, an officer must specify or describe what electronic data is sought, and applications must therefore be precise and specific. Moreover, the Bill provisions have been drafted to require officers to consider carefully what data they are targeting, and to be able to demonstrate that the data would help with the investigation and prosecution of a serious crime.

There are safeguards, also in clause 4, that require the judge to thoroughly test the need for the data sought and to be confident that

“there are reasonable grounds for believing that the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application”,

and, in clause 4(5), that the data will be of “substantial value” to an investigation or proceedings and, in subsection (6), that producing the data is “in the public interest”. Those tests make clear that the quest for electronic data using overseas production orders will be targeted, specific and not about large volumes of data relating to a number of unknown persons.

I accept that hon. Members may be referring to bulk personal datasets, but those cannot be required using overseas production orders either. The Investigatory Powers Act fact sheet on bulk personal data, which the hon. Member for Paisley and Renfrewshire North must have remembered from his reading, defines them as

“sets of personal information about a large number of individuals, the majority of whom will not be of any interest to the security and intelligence agencies. The datasets are held on electronic systems for the purpose of analysis by the security and intelligence agencies. Examples of these datasets include the electoral roll, telephone directories and travel-related data.”

The request for a large volume of data on a specific individual, or even a group of individuals such as a criminal gang if every individual is of investigatory concern, does not constitute a bulk personal dataset, as the request is still targeted and specific. For requested data to constitute a bulk personal dataset, it has to include the full bulk dataset, which would include the personal information of large numbers of unknown individuals of no interest to the investigation. Again, under the Bill, officers cannot just request bulk personal data that would not be of substantial value to their investigation.

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales) 10:30, 18 Rhagfyr 2018

To clarify, on the specific information request that the Minister speaks of, can that information be taken from data that is harvested in bulk?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

Certainly not through this process. Any use or acquisition of bulk data is guided by the Investigatory Powers Act 2016, and those conditions are set out. Someone could not use the Bill to go along to court and say, “Google, can I have data on everyone in Scunthorpe who uses the internet?” That would be a bulk dataset. However, they could go along to the court and say, “I’m investigating somebody called Gavin Newlands, and I would like to see the comms data record and some of his content.” They would make the request to the judge, possibly for more than one set of data—browsing history and mobile phone text history, perhaps. That would be two sets, but they would be specifically targeted at an individual, and would therefore not be a bulk dataset. That is the difference.

Bulk datasets are required under the 2016 Act by our intelligence service and so on, and they are overseen by the Investigatory Powers Commissioner’s Office and the warrantry system, which now has the double lock in many cases. They can also be overseen by Ministers, and to some extent by the Intelligence and Security Committee when investigating operations and how that data was used. I do not know when it will be published—it might be about to be published, or have been published—but the latest annual report by the Investigatory Powers Commissioner is out. Lord Justice Fulford’s report is a detailed analysis, and highlights where mistakes have been made or the law has not been applied.

That is how bulk data is regulated and acquired. The Bill does not apply to that, and none of those requests could involve bulk data applications.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I have some other issues to press later about journalistic material; however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I beg to move amendment 13, in clause 3, page 4, line 3, at end insert

“, or

(c) confidential journalistic data (within the meaning of section 12(4)).”

This amendment would bring confidential journalistic data within the definition of “excepted electronic data”.

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee, Chair, Defence Sub-Committee

With this it will be convenient to discuss amendment 14, in clause 12, page 10, line 27, leave out subsection (4) and insert—

“(4) ‘Confidential journalistic data’ means data—

(a) that a journalist holds that is subject to such an undertaking, restriction or obligation; and

(b) that has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”

This amendment would redefine confidential journalistic data for the purposes of the Bill.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

Again, the amendment relates to a theme of my amendments, regarding provisions of the overseas production orders being in line with the Police and Criminal Evidence Act 1984. I will refer to the excluded material under the Bill, because there is a set of conditions different from those that need to be met under the 1984 Act.

Under the 1984 Act, the definition of excluded material means that in most cases confidential journalistic material is simply out of the police’s reach. That protection helps to ensure the anonymity of those who approach journalists with information that is in the public interest. If journalists cannot ensure that their sources’ identities will be protected, people will not come forward with information exposing crime, corruption and other wrongdoings in society.

Clause 3 does outline that excepted electronic data cannot be targeted by applications by orders. That includes data subject to legal privilege, and any personal record that is confidential. However, there is a further concern with regard to protection for excluded material or journalistic material that is held subject to a duty of confidence. Under the 1984 Act, excluded material has a different set of conditions that need to be met. My question to the Minister is why that should be different in the Bill.

I appreciate that on Second Reading the Minister set out that the Bill had been worded in such a way that it is in line with the Terrorism Act 2000 and the Proceeds of Crime Act 2002. However, particularly in relation to POCA, one would usually have an application—a POCA application—at the conclusion of a trial. Obviously, in that situation the crime would already have been proven and the authorities would go after any ill-gotten gains as a consequence. It is not necessarily the best place to mirror provisions from in this context.

The concern is that, as the Bill stands and as excluded material is defined, we are running the risk of potentially sensitive material contained in confidential records being applied for and that there is not that explicit protection with regard to confidential journalistic sources. Journalists play a fundamental role in our society in holding those in power to account; I am sure that the Minister shares my concern that we do not want this legislation to suppress in any way investigative journalism and the exposure of matters in the public interest. I hope that he will be able to set out his position on that issue and provide reassurances to the members of the Committee.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

The amendment would make confidential journalistic data an excepted category for material for an overseas production order, meaning it cannot be sought using the powers in the Bill. The amendment goes further than what is currently in place under PACE. While confidential journalistic material is excluded material in PACE, it is accessible if certain access conditions are met.

Under PACE, a constable may obtain access to excluded material for the purposes of a criminal investigation by making an application under schedule 1. Excluded material can be applied for only if there is a statute that would have authorised obtaining material in question under warrant before PACE was introduced.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I accept that the conditions are different. The point is this: why is it not in the same place?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

While the Bill was based on some of the provisions in PACE, its powers extend to further offences, such as terrorism investigations. In the Terrorism Act 2000—the legislation that law enforcement agencies currently use for terrorism investigations—confidential journalistic material is not excepted data. The Bill creates a new power to obtain an overseas production order, drawing on existing powers available to law enforcement domestically for the acquisition of content data overseas, to help to prevent unnecessary delays in tackling serious crime.

It is sensible to ensure that we do not have significantly different legal tests in the Bill. The existence of different court procedures for different sorts of court orders leads to unnecessary confusion, avoidable litigation and further delays in investigations.

Photo of Huw Merriman Huw Merriman Ceidwadwyr, Bexhill and Battle

My right hon. Friend touches on a point that has struck me, in relation not only to this clause but to measures further on in the Bill. The Bill applies a test that relates, on a domestic basis, to where our terrorism laws relate, but it could actually be a lot broader. I know that he has just touched on the fact that it would actually make things more complex, but would it not be possible to have a two-tier test, depending on whether the application is terrorist-related or non-terrorist-related?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I hear my hon. Friend’s point. The whole point of the Bill is to increase the speed of the process and smooth it. What we will come on to later is obviously that in this process there is notification for journalists; other people do not get notification. Journalists are brought into the process early on, so that they are able to make representations to a judge in a way that does not apply to the rest of the public. Indeed, it does not apply to Members of Parliament; if MPs are under investigation, they will not get a chance to make representations to the judge. But a journalist will get that chance.

Our view is that the terrorism law is domestic law, and that judgment has been in existence since the last Labour Government. What is important is that the judge uses his or her discretion, guided by the fact that any judgment needs to be proportionate, necessary, in the public interest, targeted at an individual and in line with the range of domestic laws. So, yes, there is POCA, PACE and the Terrorism Act 2000. However, all of those laws are established UK pieces of legislation.

If we add the notification to the judge’s discretion—the point of it has to be proportionate and necessary—and to the fact that the laws are already established, I believe that journalists will have the protection that they need. I am happy to look at the issue, which we will come to in later amendments, about effectively improving the definition of journalistic material to make sure that it is not broad and spread wide.

In this case, we must remember that the appropriate officer will need to provide evidence against each of the access conditions, and the judge will scrutinise them carefully. It is almost inevitable that in any situation where the police attempt to obtain journalistic material, there will be understandable resistance from the journalist or media organisation that holds it. Both are well versed in the process of making representations to court, and it is rare that access to confidential material is granted through PACE.

It is the Government’s intention that journalists’ interactions with their sources should be protected, but that does not mean that journalists should receive blanket protection from legitimate investigation, simply because of their chosen profession. The Bill takes a reasoned balanced approach, so I ask the hon. Gentleman to withdraw amendment 13.

Amendment 14 seeks to redefine “confidential journalistic data”. The definition in the Bill is taken from the Investigatory Powers Act 2016, which the Government feel is sufficient protection for source material.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I have already referred to the Police and Criminal Evidence Act 1984. I am not saying that there is a blanket protection, but there is a stringent set of tests. Before the Minister concludes, will he say how satisfied he is about how stringent the tests are in the Bill?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I am satisfied, and the court rules will also expand on that. I am satisfied that judges, who regularly come down not on the Government’s side, will take the Bill and scrutinise the requests properly. We have to go to a judge, so our law enforcement agencies cannot examine the information without going via the judiciary; it goes via the judiciary in this case. I have every faith that they will be able to uphold those important principles.

On amendment 14, the term “confidential journalistic data” reflects the reality whereby journalistic material can be hosted on servers where the data would technically belong to the communications service provider, rather than the journalist. To ensure that source material has proportionate protections, the term “confidential journalistic data” has been borrowed from the 2016 Act. I am happy to discuss that further with hon. Members before Report. I therefore ask the hon. Gentleman to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4