The Regulation of Investigatory Powers Act (RIPA) was changed
last autumn to allow police to force people to hand over passwords
or keys to encrypted data. Refusal to do so is a criminal offence
carrying a penalty of two years in jail, or up to five years if the
issue concerns national security.
One criminal law specialist has told technology law podcast
OUT-LAW Radio that the law could be
challenged under the Human Rights Act, though he also warned that
such a challenge could fail under legal tests set out by the
European Court of Justice (ECJ).
In the UK people under arrest have a right to remain silent,
which could be used as a reason not to tell police a password. That
right is not absolute, though, and defendants would have to rely on
the Human Rights Act-enshrined right to a fair trial, according to
Jonathan Rogers, a criminal law academic at UCL in London.
"Article 6 [of the Human Rights Act] provides us all with the
right to a fair trial both in civil and criminal proceedings, it
gives various rights such as the right to a lawyer, the right to be
able to understand the language, the right to be able to examine
any witnesses against you," said Rogers. "There aren't any words
addressing the principle of self-incrimination, but the European
Court read in those words to the text many years ago, which of
course gives them more flexibility in later on interpreting
them."
Last year a British man, a Mr O'Halloran, attempted to use that
defence for his refusal to tell police who was driving a car caught
on camera speeding. He lost at the ECJ because he failed tests set
down by that court.
It said that courts should decide whether or not to force
someone to disclose information which might be self-incriminating
they should assess what the nature of the compulsion to disclose
is, the number of safeguards which exist and the use to which the
information might be put.
In O'Halloran's case it was decided that he should be made to
disclose the information, but this would not always be the case.
Rogers said that the seriousness of the compulsion to disclose, and
the harsh penalty of going to jail, might sway judges in other
cases not to force disclosure.
On the other hand, he said, the fact that an investigation has
to be well-advanced and has to be sanctioned by a senior police
officer before keys can be demanded could weigh in the police's
favour.
"Safeguards would include whether the investigation has been
authorised at a senior level and whether there is already some
evidence against the defendant in the first place," he said.
"Obviously the more evidence against the defendant, the more
reasonable it is to expect him to cooperate with the
inquiry."
Human rights law lecturer Colm O'Cinneide, also of UCL, said
that while the reasons for introducing such a law seemed reasonable
in the face of an increased terrorist threat, there was cause for
privacy concern as surveillance law mounts up.
"It certainly raises lingering concerns, a certain unease in
general about the gradual erosion of our privacy," he said. "The
law doesn't necessarily provide very strong protection in this area
and the government, investigative authorities and the police are
amassing quite a lot of power. You are ending up at the end of the
day with very broad surveillance powers."
William Malcolm, an privacy law specialist at Pinsent Masons,
the law firm behind OUT-LAW.COM, said that the RIPA legislation
itself provides protection for privacy.
"The whole purpose of the Regulation of Investigatory Powers
framework is to place on a statutory footing, on a transparent
footing, the way in which law enforcement agencies and national
security agencies access these materials," he said. "Why? Because
by having that level of transparency we can ensure the protection
of people's rights."
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