International Law

Court of Appeal ruling on RIPA Part III section 49 notices and section 53 prosecutions regarding law enforcement access to encryption keys etc.

Hat tip to David Mery, for spotting this before us:

The Court of Appeal has recently ruled on a case involving the Regulation of Investigatory powers Act 2000 Part III Investigation of electronic data protected by encryption etc section 49 notices and section 53 prosecutions regarding law enforcement access to encryption keys or forcing the hand over of de-crypted material etc.

The British and Irish Legal Information Institute has now published the text of the recent Court of Appeal ruling which upholds that a refusal to hand over your secret decryption keys, after being served with a RIPA section 49 notice, is not prevented by any protections against self incrimination i.e. the appellants can be prosecuted under RIPA section 53 for refusing to hand over their decryption keys or the
unencrypted files:

S & Anor, R. v [2008] EWCA Crim 2177 (09 October 2008)

"Furthermore, by way of emphasis, we can see no possible ground for a successful application that the prosecution under section 53 of RIPA should be stopped as an abuse of process."

The Court of Appeal takes the view that simply handing over your encryption key is not an admission of guilt, and that if the de-crypted material is innocent, then you have nothing to fear.

If the encrypted material was something which was hard to misinterpret e.g. a simple financial transaction, we might agree,

However, we disagree, when the encrypted material, as in this case, will be potentially misinterpreted according to the subjective interpretation and prejudices of police officers and prosecutors, in this case under the "thought crime" Terrorism Act 2000 section 58 collection of information which has the catch all wording:

(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism,

This also goes for any encrypted data which may or may not be considered "obscene" in the opinion of a particular police constable.

Full post as published by Spy Blog on October 13, 2008 (boomark / email).