The House of Lords debated the IPBill in the Committee this Wednesday for the last time before the summer recess. The topics covered the Internet Connection Records (ICRs), the Request Filter and equipment interference. Here is a brief breakdown of what was said. We will be back in September with more.
Throughout the debate, the Lib Dem Lords mounted strong opposition to the Government in all three areas being discussed.
Internet Connection Records
Lord Paddick and Baroness Hamwee presented their amendments requesting removal of the ICRs, arguing they fail to meet the basic test of necessity. Lord Paddick made excellent points to justify their position.
Internet connection records do not do what the Government claim they do. … At best, internet connection records provide only details of which communications platforms have been used, most of which are based in the United States.
Lord Paddick referred to earlier statements made by MI5, MI6 and GCHQ claiming they do not have explicit necessity for ICRs because they have other ways of securing the data they need.
Lord Strasburger seconded their reasoning and pointed to high costs and impracticalities related to keeping the records. He made a case for the ICRs weakening the safety of British citizens. Strasburger said
It is a matter of when, not if, these sensitive data get into the wrong hands.
The unique position of the UK stubbornly requiring ICRs was questioned by Lord Oates. He pointed out that none of the Five Eyes countries, or any western democracy, collects ICRs. According to Lord Oates, it will be a horrific experience for the public when they discover that government insists on the retention of the details of every single person in the country's access to every single website.
The Government maintained their position that ICRs are necessary in combatting crime but did not offer any compelling evidence, instead repeatedly stressing their desire for ICRs to future-proof the Bill.
Under the agreed amendments on ICRs, they can only be obtained by UK authorities if they are to be used to help prevent or detect crime. Lord Keen of Elie said that ICRs would only "be able to be acquired only for offences that are sufficiently serious that an offender can be sentenced to at least six months’ imprisonment". The amendments were still criticised because of their vague phrasing.
The request filter was debated under similar narrative. Lord Strasburger argued the filter would be too intrusive. Ha called it “a bulk power masquerading as an innocuous safeguard to reduce collateral intrusion.”
The Government's response to him was that the filter facilitates public authority cross-stakeholder communications; Lord Keen even called the request filter a safeguard because the authorities will only see the data they need to see (they did not provide any information on how this is technically possible).
Strasburger's concerns of misuse were also shared by the Conservative Lord Lucas.
The potential for casual misuse or misuse suborned by journalists will be considerable. On top of that is potential misuse by government.
The Lords also discussed several probing amendments on thematic warrants and hacking, including training and testing warrants. The training and testing warrants became the centre of attention after it became obvious that an innocent citizen could be the subject of the above warrants.
Baroness Jones submitted her proposal to create the Investigatory Powers Commission instead of IP Commissioner. Her reasoning is that
this approach confuses and conflates the roles of authorisation and oversight. It is constitutionally inappropriate for those involved in decision-making to have responsibility for the oversight of those same decisions. Such conflation gives rise to a potential conflict of interest.
Mentions of the CJEU Advocate General's opinion
Regarding the opinion of the Advocate General published the morning of the debate, Lord Strasburger used it to challenge the ICRs collection. However, Lord Keen refused to comment on potential implementation of the opinion until the European Court of Justice rules in the DRIPA challenge.
The Government maintain that the existing regime for the acquisition of communications data and the proposals in the Investigatory Powers Bill are compatible with EU law, and clearly it would not be appropriate to comment further while legal proceedings are ongoing.