On Monday 1 February, the Science and Technology Committee will publish its report into the Draft Investigatory Powers Bill, which concludes that the Bill, in its current form, “is unhelpful to businesses trying to compete in a global communications market and risks undermining our strongly performing Tech sector” (Page 3).
ISPA, the voice of the UK Internet industry, welcomes that the influential parliamentary Committee has clearly recognised that ISPs and tech companies from across the UK and overseas have concerns about what the new measures will mean for business plans, costs and competitiveness.
ISPA fully agrees with the Committee that without further refinement, “the current lack of clarity” of the terms and scope of the legislation could lead to “many unintended consequences” for the tech sector. We further agree that it is “essential” that integrity and security of online transactions are maintained so that the UK can continue to “trust in and benefit from the opportunities of an increasingly digital economy” (Page 4).
Responding to the report, ISPA Secretary General Nicholas Lansman said “We are pleased parliament recognises that the Bill, as drafted, risks undermining the competitiveness of the UK tech sector. We now expect the Home Office to take on board these recommendations, along with those of the upcoming Joint Committee report, to produce a clearer Bill that is clear, technically feasible, proportionate and maintains trust in online services.”
The Committee’s report provides a substantial list of important recommendations which the Home Office needs to address if it wishes to have a Bill that keeps the UK secure without negatively impacting one of the country’s key growth sectors. ISPA particularly wants to highlight the following recommendations:
- Full cost recovery to industry:
The Committee concludes that “the Government should reconsider its reluctance for including in the Bill an explicit commitment that Government will pay the full costs incurred by compliance.” (Page26). ISPA fully agrees as full cost recovery not only creates a level playing field, but it acts as the strongest check on investigatory powers as their use has to be paid for.
- Clearer definitions:
The Committee concludes that key terms, including Internet Connection Records, need to “clarified as a matter of urgency” and that the “Government should review the draft Bill to ensure that the obligations it is creating on industry are both clear and proportionate.” (Page 15). ISPA fully supports this recommendation as the current Bill’s broad nature makes it virtually impossible to address the actual impact of the Bill.
- More meaningful codes of practice:
The Committee is right to call for timely publication of relevant codes of practice that address proportionality, cost recovery and compliance concerns (page 27). We agree that these codes should be regularly updated in consultation with a wide range of stakeholders.
- Government still needs to provide clarity around end-to-end encryption:
The Committee notes that “There is some confusion about how the draft Bill would affect end-to-end encrypted communications” and concludes that “the Government should clarify and state clearly in the Codes of Practice that it will not be seeking unencrypted content in such cases, in line with the way existing legislation is currently applied.” (Page 19). ISPA believes this is an important contribution and we support the common-sense approach that CSPs should not be asked by authorities to unencrypt data it is technically it is not able to.
- Equipment interference:
The Committee notes that the “the industry case regarding public fear about ‘equipment interference’ is well founded.” (Page 21). ISPA fully agrees with the Committee that the “Investigatory Powers Commissioner should report to the public on the extent to which such measures are used.” (Page 21)
- Review of the Technical Advisory Board:
The Committee makes a number of recommendation that would strengthen the Technical Advisory Board and give a greater role in controlling the application of the investigatory powers regime. ISPA fully supports the call for the TAB to be reviewed so that it provides wide-ranging technical and legal expertise.
- Recognition of SMEs
The Committee recognises at various points the concern of small and medium-sized ISPs. ISPA fully agrees that smaller providers face a level of uncertainty around whether a notice may be served upon, and what this would mean to their business, and so need protection from burdensome costs.
- Further ongoing consultation: The Committee is right to state that consultation with industry should be a “central strand” of its strategy and this must include the breadth of industry.
It is vital that the Government passes a bill that is clear, feasible, proportionate and legally compliant. The Committee’s report makes a number of important recommendations to help address this aim from a technical perspective that will help further parliamentary and wider scrutiny of the draft Bill to achieve this goal.