IP: Observer (London) 24/10/99: "Police power to read e-mails 'is breach of rights'"

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

> Observer (London) Sunday October 24, 1999



> http://www.newsunlimited.co.uk/observer/uk_news/story/0,3879,95331,00.html



> Police power to read e-mails 'is breach of rights'
>
> Free speech on the net
>
> Richard Reeves, Society Editor
>
> New police powers to intercept and decode private e-mail messages are in
> fundamental breach of human rights, according to a legal opinion from two of
> Britain's leading rights lawyers to be released this week.
> In a damning critique of the Government's Electronic Communications Bill,
> the opinion accuses Ministers of reversing the presumption of 'innocent
> until proven guilty', eroding the legal right to silence and putting
> insufficient safeguards in place to avoid police abuses.
>
> The Bill will give the police powers to demand decryption 'keys' that allow
> encoded material to be read, to bring criminal prosecution against anyone
> who does not comply with such an order and to scrutinise any material found
> as a result - whether it relates to the original investigation or not.
>
> 'The Government is attempting to bolt decryption powers for the Internet
> onto existing interception laws,' said Caspar Bowden, director of the
> Foundation for Information Policy Research, who requested the opinion, along
> with Justice, the legal human rights group. 'This legal analysis
> demonstrates why this approach is unsound and is incompatible with basic
> human rights. The powers of the police in this area can only be described as
> Kafka-esque.'
>
> The 44-page analysis, drawn up by Jack Beatson QC, a former Law
> Commissioner, and Tim Eicke, a barrister specialising in human rights and
> communication, is a serious blow to the Home Office, which is desperate to
> avoid a 'big brother' tag.
>
> 'We are aware of the human rights issues,' said a spokesman. 'But we believe
> that the provisions in the Bill are compatible with the human rights
> articles.'
>
> The opinion argues that the power granted to security forces by the handing
> over of an encryption key is too draconian, giving officers 'access to all
> his or her communications, past, present and future'. It says there are
> other ways of giving access to encrypted information, including handing over
> decrypted messages, or the encoded text for a particular 'session' along
> with the key.
>
> The creation of a criminal offence of failing to hand over a key contravenes
> the right to a fair trial guaranteed under Article 6 of the European
> Convention, it adds. The same Article guards against self-incrimination,
> which is likely to be breached by the total access offered to law
> enforcement agencies.
>
> Fears that the Government is moving towards an aggressive policy of e-mail
> surveillance and interception will be fuelled by the appointment of a senior
> operative from GCHQ, the intelligence communications centre, to head a new
> squad to tackle the growing use of the Internet by criminal gangs and
> terrorist organisations.
>
> Alongside the new powers to demand encryption keys, the e-crime squad is
> considering subtle forms of detection which do not alert suspects to
> surveillance.
>
> (The opinion is available at http://www.fipr.org/ecomm99/ecommaud.html)