IP: "It's RIP basic human rights as 'worst UK legislation ever' looms"

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

> From: "Caspar Bowden" <cb () fipr org>
> To: "Dave Farber \(E-mail\)" <farber () cis upenn edu>
> Subject: Observer 26/3/2000: "It's RIP basic human rights as 'worst 
> UK legislation ever' looms"
> Date: Sun, 26 Mar 2000 13:08:32 +0100
> X-Priority: 3 (Normal)
> Importance: Normal
>
> http://www.newsunlimited.co.uk/observer/business/story/0,3879,150984,00.html
> It's RIP basic human rights in 'worst UK legislation ever' looms
>
> Free speech on the net: special report
>
> John Naughton
> Sunday March 26, 2000
>
> To LSE for a conference on the Interior Ministry's Regulation of
> Investigatory Powers (RIP) Bill, currently in Committee in the Mother of
> Parliaments. Readers of this column will know that, among other things, this
> odious piece of legislation reverses the ancient principle of natural
> justice that says that a person should be pre sumed innocent until proven
> guilty.
> Specifically, the bill stipulates that if a message or device traced to you
> contains encrypted data, you can be required by a statutory order to hand
> over the key needed to decrypt that data. If you have lost or forgotten that
> key, you will be presumed to be guilty of an offence and required to prove
> to a court that you have indeed lost or forgotten it. If convicted, you will
> go down for two years.
>
> This, of course, raises the question: how do you prove that you have
> forgotten something? When taxed with this, Charles Clarke, the junior
> minister charged with shepherding this attack on liberty through the
> Commons, repeated the official mantra. 'The Bill,' quoth he, 'creates a
> defence for an individual who has forgotten or mislaid a key or password. It
> is true that he or she must prove the defence, but they need to do that only
> on the balance of probabilities.'
>
> Ah, that magic phrase, 'balance of probabilities'. And how, pray, is that to
> be assessed? By the use of lie-detectors in British courts? Clarke was
> repeatedly pressed on this at the conference, but declined to be drawn.
> Instead he intoned the 'balance of probabilities' mantra like a speak-your-
> weight machine on valium.
>
> In the circumstances, there seemed little point in drawing his attention to
> a celebrated judgment in Canada's Supreme Court that held: 'If an accused is
> required to prove some fact on the balance of probabilities to avoid
> conviction, the provision violates the presumption of innocence because it
> permits a conviction in spite of a reasonable doubt in the mind of the trier
> of fact as to the guilt of the accused' (Reg v Whyte (1988) 51 DLR (4th)
> 481).
>
> Clarke belongs to a government which claims that it wants to make the UK the
> best place in the world for e-commerce. It was interesting then to hear a
> question from a chap who works for AT&T and is responsible for the security
> and integrity of the networks of several large banks and financial
> institutions. He holds lots of decryption keys as a result of that
> responsibility, and has a contractual obligation to his clients to protect
> their secrets.
>
> Under the terms of the RIP Bill, he can be required to disclose those keys
> to a duly authorised goon - but he is also legally forbidden to reveal to
> his clients that their secrecy has thereby been compromised. As he spoke,
> you could see Clarke opening and shutting his mouth like a stunned carp. The
> only sound to be heard was the noise of online banks stampeding to leave the
> country.
>
> With the exception of the original Official Secrets Act, rushed through in a
> single afternoon in 1911, the RIP Bill is probably the worst piece of
> legislation ever laid before Parliament. It proposes to give the Interior
> Minister the kinds of powers Robert Mugabe can only fantasise about. (In
> fact it was claimed at the conference that the only other country in the
> world proposing legislation like this is Zimbabwe.)
>
> The Bill proposes the violation of what any civilised society would regard
> as elementary human rights (presumption of innocence, the right to a fair
> trial, protection of privacy and freedom from random surveillance, to name
> just four). It does so under the breathtaking assertion that these abuses
> are necessary to bring the UK in line with the European Convention on Human
> Rights. And it will be law by October.