(Errata) Assessment of Govt. 3RD READING amendments

[Caspar Bowden]

Sorry that subject line should have read 3rd Reading Amendmnets

--
Caspar Bowden               Tel: +44(0)20 7354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at:    www.fipr.org/rip#media



> -----Original Message-----
> From: owner-ukcrypto@maillist.ox.ac.uk
> [mailto:owner-ukcrypto@maillist.ox.ac.uk]On Behalf Of Caspar Bowden
> Sent: 18 July 2000 13:44
> To: FIPR-AC (E-mail); Ukcrypto (E-mail)
> Subject: Assessment of Govt. report stage amendments
> 
> 
> V. glad any comments
> --
> Caspar Bowden               Tel: +44(0)20 7354 2333
> Director, Foundation for Information Policy Research
> RIP Information Centre at:    www.fipr.org/rip#media
> 
> 
> 
> Clause 2  BY THE LORD BASSAM OF BRIGHTON
>       Page 5, line 37, leave out subsections (11) and (12)
> 
> and
> 
> Clause 21  BY THE LORD BASSAM OF BRIGHTON
>       Page 26, line 12, leave out subsections (8) and (9)
> 
> [FIPR] Surprising. Relinquishes power to subsequently modify 
> definition of
> communications data under secondary powers.
> =====================
> 
> Clause 10  BY THE LORD BASSAM OF BRIGHTON
>       Page 13, line 26, leave out subsection (10) and insert--
> 
>     ("(10)  For the purposes of this section--
> (a)  the scheduled parts of an interception warrant are any 
> provisions of
> the warrant that are contained in a schedule of identifying factors
> comprised in the warrant for the purposes of section 8(2); and
> (b)  the modifications that are modifications of the 
> scheduled parts of an
> interception warrant include the insertion of an additional 
> such schedule in
> the warrant;
> and references in this section to unscheduled parts of an interception
> warrant, and to their modification, shall be construed accordingly.")
> 
> [FIPR] Purpose totally unclear - perhaps related to 
> "cart-before-horse"
> problem of overlapping warrants raised by FIPR
> http://www.fipr.org/rip/OverRideCertificates.htm
> =======================
> 
> Clause 49  BY THE LORD BASSAM OF BRIGHTON
>       Page 54, line 31, leave out from beginning to 
> ("performance") in line
> 32 and insert ("necessary for the purpose of securing the 
> effective exercise
> or proper")
> 
> Attempt to fix infamous 49(2)(b)(ii)
> 
> Will now read: "necessary for the purpose of securing the 
> effective exercise
> or proper performance by any public authority of any 
> statutory power or
> statutory duty"
> 
> OR full monty
> 
> "If any person with the appropriate permission under Schedule 
> 2 believes, on
> reasonable grounds (a) that a key to the protected 
> information is in the
> possession of any person, (b) that the imposition of a disclosure
> requirement in respect of the protected information is (i) 
> necessary for the
> purpose of securing the effective exercise or proper 
> performance by any
> public authority of any statutory power or statutory duty  
> (c) that the
> imposition of such a requirement is proportionate to what is 
> sought to be
> achieved by its imposition, and (d) that it is not reasonably 
> practicable
> for the person with the appropriate permission to obtain 
> possession of the
> protected information in an intelligible form without the 
> giving of a notice
> under this section, (deep breath) the person with that 
> permission may, by
> notice to the person whom he believes to have possession of 
> the key, impose
> a disclosure requirement in respect of the protected information"
> 
> [FIPR] BUT...this still means that the White Fish Authority 
> can get your
> private key if they can persuade a judge that they need it.
> =======================
> 
> Clause 49  BY THE LORD BASSAM OF BRIGHTON
>       Page 55, line 18, at end insert--
> 
> ("and the time specified for the purposes of paragraph (f) 
> must allow a
> period for compliance which is reasonable in all the circumstances.")
> 
> [FIPR] This means that the time allowed to comply with a 
> notice cannot be so
> short that you are consequently stitched up.
> =======================
> 
> Clause 51   BY THE LORD BASSAM OF BRIGHTON
>       Page 58, line 15, after ("police") insert ("or by a 
> member of Her
> Majesty's forces who is a member of a police force")
>       Page 58, line 20, at end insert ("who is not a member 
> of a police
> force")
> 
> [FIPR] Tidying ? unclear
> =======================
> Clause 51 BY THE LORD BASSAM OF BRIGHTON
>       Page 58, line 40, at end insert--
> 
>     ("(6)  Where a direction for the purposes of subsection 
> (1) is given by
> a chief officer of police, by the Commissioners of Customs 
> and Excise or by
> a member of Her Majesty's forces, the person giving the 
> direction shall give
> a notification that he has done so--
> (a)  in a case where the direction is given--
>     (i)  by a member of Her Majesty's forces who is not a 
> member of a police
> force, and
>     (ii)  otherwise than in connection with activities of 
> members of Her
> Majesty's forces in Northern Ireland,
>   to the Intelligences Services Commissioner; and
>   (b)  in any other case, to the Chief Surveillance Commissioner.
>     (7)  A notification under subsection (7)--
> (a)  must be given not more than seven days after the day of 
> the giving of
> the direction to which it relates; and
> (b)  may be given either in writing or by being transmitted to the
> Commissioner in question by electronic means.")
> 
> [FIPR] Notify relevant Commissioner within seven days when a 
> key is demanded
> (but not Interception Commissioner for interception ??)
> =======================
> 
> Clause 55   BY THE LORD BASSAM OF BRIGHTON
>       Page 62, line 7, at end insert--
> 
>     ("(4)  Subject to subsection (6), where any relevant 
> person incurs any
> loss or damage in consequence of--
> (a)  any breach by a person to whom this section applies of 
> the duty imposed
> on him by subsection (2), or
> (b)  any contravention by any person whatever of arrangements made in
> pursuance of that subsection in relation to persons under the 
> control of a
> person to whom this section applies, the breach or 
> contravention shall be
> actionable against the person to whom this section applies at 
> the suit or
> instance of the relevant person.
> 
>     (5)  A person is a relevant person for the purposes of 
> subsection (4) if
> he is--
> (a)  a person who has made a disclosure in pursuance of a 
> section 49 notice;
> or
> (b)  a person whose protected information or key has been disclosed in
> pursuance of such a notice
> and loss or damage shall be taken into account for the 
> purposes of that
> subsection to the extent only that it relates to the disclosure of
> particular protected information or a particular key which, 
> in the case of a
> person falling with paragraph (b), must be his information or key.
> 
>     (6)  For the purposes of subsection (5)--
> (a)  information belongs to a person if he has any right that would be
> infringed by an unauthorised disclosure of the information; and
> (b)  a key belongs to a person if it is a key to information 
> that belongs to
> him or he has any right that would be infringed by an unauthorised
> disclosure of the key.
>     (7)  In any proceedings brought by virtue of subsection 
> (4), it shall be
> the duty of the court to have regard to any opinion with 
> respect to the
> matters to which the proceedings relate that is or has been given by a
> relevant Commissioner.
> 
>     (8)  In this section "relevant Commissioner" means the 
> Interception of
> Communications Commissioner, the Intelligence Services 
> Commissioner, the
> Investigatory Powers Commissioner for Northern Ireland or any 
> Surveillance
> Commissioner or Assistant Surveillance Commissioner.")
> 
> [FIPR] Allow authorities with custody of seized keys to be 
> sued for damages
> on grounds only that SAFEGUARDS NOT ADHERED TO (no strict liability)
> =======================
> 
> Clause 57  BY THE LORD BASSAM OF BRIGHTON
>       Page 64, line 29, leave out from ("State") to end of line 32 and
> insert ("after consultation with the Interception of Communications
> Commissioner, shall--
> (a)  make such technical facilities available to the Commissioner, and
> (b)  subject to the approval of the Treasury as to numbers, 
> provide the
> Commissioner with such staff,
> as are sufficient to secure that the Commissioner is able 
> properly to carry
> out his functions.")
> 
> [FIPR] Given Interception Commissioner technical facilities 
> and staff (but
> not necessarily technical staff)
> =======================
> 
> Clause 58 BY THE LORD BASSAM OF BRIGHTON
>       Page 65, line 31, at end insert--
> 
>     ("(  )  The Interception Commissioner may also, at any 
> time, make any
> such other report to the Prime Minister on any matter relating to the
> carrying out of the Commissioner's functions as the 
> Commissioner thinks
> fit.")
> 
> [FIPR] Allow Interception Commissioner to shout call-the-cops 
> anytime to PM
> =======================
> Clause 60  BY THE LORD BASSAM OF BRIGHTON
>       Page 67, line 25, at end insert--
> 
>     ("(  )  The Intelligence Services Commissioner may also, 
> at any time,
> make any such other report to the Prime Minister on any 
> matter relating to
> the carrying out of the Commissioner's functions as the 
> Commissioner thinks
> fit.")
> 
> [FIPR] Ditto Intelligence Services Commissioner
> =======================
> 
> Clause 65   BY THE LORD BASSAM OF BRIGHTON
>       Page 71, line 10, after ("services;") insert--
> ("(  )  they are proceedings brought by virtue of section 55(4);")
>       Page 72, line 8, at end insert--
> 
> ("but conduct does not take place in challengeable 
> circumstances to the
> extent that it is authorised by, or takes place with the 
> permission of, a
> judicial authority")
>       Page 72, leave out lines 16 to 19 and insert--
> ("(d)  a permission for the purposes of Schedule 2 to this Act;
> (e)  a notice under section 49 of this Act; or")
>       Page 72, line 36, at end insert--
> 
>     ("(11)  In this section "judicial authority" means--
> (a)  any judge of the High Court or of the Crown Court or any 
> Circuit Judge;
> (b)  any judge of the High Court of Justiciary or any sheriff;
> (c)  any justice of the peace;
> (d)  any county court judge or resident magistrate in 
> Northern Ireland;
> (e)  any person holding any such judicial office as entitles 
> him to exercise
> the jurisdiction of a judge of the Crown Court or of a justice of the
> peace.")
> 
> Allows complaint to Tribunal for any type of decryption 
> notice EXCEPT those
> authorised by judges. Previously, decryption notice under 
> Pt.III of Police
> Act 1997 (police self-authorised, approved by surveillance 
> Commissioner)
> would not have been allowed before Tribunal - any other 
> examples ? PACE
> warrants usually judicially authorised, but exceptions ?...
> =======================
> 
> Clause 73  BY THE LORD BASSAM OF BRIGHTON
>       Page 81, line 46, leave out ("(4)") and insert ("(4)(a) 
> or (c) to
> (g)")
> 
> Unclear (need check against version with line-numbers)
> =======================
> Clause 78 - (boring)
> 
> Some tidying of positive/negative resolution procedure on 
> 2nd-ry powers
> 
> =======================
> 
> --
> Caspar Bowden               Tel: +44(0)20 7354 2333
> Director, Foundation for Information Policy Research
> RIP Information Centre at:    www.fipr.org/rip#media
> 
> 
> 
>