IP: Imagine that you are afraid of a knock on the door...

[Dave Farber <farber () cis upenn edu>]

> Date: Fri, 26 Nov 1999 04:29:28 -0800
> From: John Gilmore <gnu () toad com>
>
>
> Good word-mongering on the US-driven UK proposals to demand your crypto
> keys.  -- John
>
> Forwarded-by: Frank Ederveen <frank () our domaintje com>
> > From http://www.slashdot.org -today:
>
> Imagine that the knock could be the police, coming in secret to
> interrogate you. Imagine that they can demand you decrypt files
> for them, and demand you tell them your code keys, even to get
> evidence to use against you. In effect, they can force you to
> testify against yourself, and it is a crime to refuse.
>
> Imagine that for these offenses you are effectively considered
> guilty unless you can prove your innocence: mere failure to comply
> is the crime. If you do not have the key they demand, you will be
> imprisoned unless you can prove it.
>
> Imagine that they can behave arbitrarily, because their actions
> are secret. They do not need to get a court's authorization to
> demand your testimony. And if you tell anyone -- your friends and
> associates, a news reporter, even in most circumstances an open
> courtroom -- that you have been forced to testify, they will imprison
> you just for telling.
>
> Imagine that the only judicial control over these actions is a
> special secret court, with no jury, where decisions are made by
> judges chosen for their sympathy to the prosecution. Imagine that
> they can hear evidence from the prosecutors in secret, so you do
> not even have a chance to deny it.
>
> Unfortunately, there is no need for imagination. This is a real
> proposal -- not in China or Iraq, as you might expect, but in
> Britain. It was proposed as part of the draft Electronic Communications
> bill (http://www.fipr.org/polarch/draftbill99/index.html), but has
> been withdrawn from there, probably to be reintroduced shortly in
> a separate "Regulation of Investigatory Powers" bill. (Proposals
> to extend government power are often secreted in bills with
> opposite-sounding names.) The country that gave the world the
> concept of the rights of citizens, of protection from abuse of
> government power, of the right to remain silent and not be compelled
> to testify against yourself, is tearing up the concept and throwing
> it away.
>
> The rot in the British legal system began under the previous
> Conservative government, which passed an "anti-terrorist" law saying
> that -- for certain crimes -- if you refuse to answer questions,
> that can be held against you. Thus the first stone was thrown at
> the right to remain silent.
>
> As a supposed protection against abuse, this law said that courts
> must not convict based on silence alone; they must have some other
> basis as well. But the same law established that an official
> accusation of membership in a prohibited organization can also be
> held against you. This, too, is not sufficient by itself -- which
> only means that the two together are needed for a conviction. If
> you are accused of belonging to a prohibited organization, and you
> refuse to answer police questions, you go to prison.
>
> Of course, every law that undermines the rights of citizens has an
> "urgent" justification. For this law, the justification was IRA
> terrorism; but the cure is far worse than the disease. A century
> from now, IRA bombing will be just a chapter of history, but the
> painful effects of the "cure" will still be felt.
>
> The "New Labor" government of Prime Minister Blair which replaced
> the Conservative government is eager to extend this policy to other
> areas. I was not greatly surprised to learn that the same government
> also plans to eliminate the right to a jury in criminal trials (see
> The Guardian, November 20 1999, page 1). These policies would
> gladden the heart of an Argentine general.
>
> When you speak with British officials about the issue, they insist
> that you can trust them to use their power wisely for the good of
> all. Of course, that is absurd. Britain must hold to the tradition
> of British law, and respect the rights of citizens to a fair trial
> and non-self-incrimination.
>
> When you try to discuss the details, they respond with pettifoggery;
> for example, they pretend that the plan would not really consider
> you guilty until proven innocent, because the official forms that
> demand your code keys and your silence are officially considered
> the proof of guilt. That in practice this is indistinguishable from
> requiring proof of innocence requires more perspicuity than they
> will admit to.