The Home Office wrote to us on December 13th outlining what they plan to do about the draft Communications Data Bill. This follows very critical reports from the two committees scrutinising their proposals.
A pdf of the letter is also available.
13 Dec 2012
Dear Mr Killock,
I thought it would be helpful to write to you with an update on the Draft Communications Data Bill, particularly in light of all the recent press comment.
As you will be aware the Draft Bill has been undergoing Pre-Legislative Scrutiny since its publication earlier this year. That process has now come to a close and both the Joint Committee considering the Bill and the Intelligence and Security Committee have this week published their reports.
We are carefully considering the Committees’ recommendations and looking at how we can amend the Bill, in order to provide greater public reassurance and to continue honouring our commitment to protect civil liberties. We believe we can make the significant changes to the Bill that will enable us to accept the principle of all of the Joint Committees specific recommendations. We remain clear that this Bill is essential and it must not be delayed. To do so would put at risk our ability to fight crime and protect national security. Quite simply, without legislation, lives will be lost.
Why do we need this Bill now?
Communications data – information relating to the who, when, where and how of a communication, but not its content – is vital to law enforcement, especially when dealing with organised crime, child abuse and terrorism. It has played a role in every major Security Service counter-terrorism operation over the past decade and in 95 per cent of all serious organised crime investigations. Communications data can and is regularly used by the Crown Prosecution Service as evidence in court.
But communications technology is changing rapidly and continuously, and criminals and terrorists are increasingly moving away from landline and mobile telephones to communications on the internet. Existing legislation does not require communication service providers to generate and retain all the data from internet-based communications now needed by the police and security agencies. This can have a serious impact on police investigations and the problem is getting worse.
Witnesses from law enforcement have stated in private and in public – including before the Joint Committee – how important they consider the Bill to be in tackling crime, protecting the vulnerable and saving lives. Peter Davies, the Chief Executive of the Child Exploitation and Online Protection Centre, has stated that “without communications data and intelligence, we would not be able to act as fast as we need to and, in many instances, we would not be in a position to act at all'.
What have the Committees said in their reports?
In their reports, both Committees recognise the significant problem and the impact it will have on criminal investigations. They are clear on the need for legislation.
The ISC said: “The Agencies require access to CD – in certain tightly controlled circumstances and with appropriate authorisation – in the interests of national security. We recognise that changing technology means that the Agencies are unable to access all the CD they need, that the problem is getting worse, and that action is needed now. We accept that legislation to update the current arrangements governing retention of CD offers the most appropriate way forward".
The Joint Committee said: "The law enforcement agencies should be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools. Our overall conclusion is that there – is a case for legislation which will provide the law enforcement authorities with some further access to communications data".
The Committees have expressed concerns about some elements of the drafting and we have already indicated to the Joint Committee that we are willing to look at this. We believe that it will be possible to address the Committees’ concerns, particularly those relating to the scope of the Bill as currently drafted, so that it better represents the Governments intentions. We are already looking at how to amend the Bill to: limit its scope more clearly to data needed to answer the who, when, where and how questions; to specify more clearly what it is used for; and to tighten up how it is accessed.
How are we safeguarding civil liberties?
In seeking to ensure our law enforcement agencies continue to retain capabilities to protect us from harm, our right to privacy will be respected and protected. As under current legislation, the police and others can only access communications data on a case-by-case basis, where it is necessary and proportionate to do so as part of a criminal investigation, and has been approved by a designated senior officer. Only public bodies approved by Parliament will be able to access this data. And the data itself will not be held in a central Government database, but by the communications service providers who already store some of this data for their own business purposes. This entire process will be overseen by the Information Commissioner and the Interception of Communications Commissioner. We are in close consultation with the Information Commissioner and the Interception of Communications Commissioner. We will of course, make sure that they have the necessary powers and resources to do their duties in a way which commands public confidence.
We very aware [sic] of the concerns about the Bill and are extremely mindful, as were the Committees, of the balance that must be struck between maintaining our rights to safety and security, and that of personal privacy. But we do not believe we can allow the internet to become an unpoliced space where criminals are free to go about their business.
What are the next steps?
We are now working to amend the Bill in the light of the Committees’ recommendations. The Committees have highlighted the need for further consultation, particularly with communication service providers, but with others too and we will be taking this forward.
We would like to keep you updated as we develop the Bill for introduction, and will be in touch regarding further engagement. In the meantime, if you would like further detail on the proposals please contact the communications data team at firstname.lastname@example.org