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Human rights challenge to RIPA

We investigate whether or not a new law compelling UK citizens to hand over encryption keys on pain of being jailed might strip them of their right to a fair trial.24 Jan 2008

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A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.

Hello and welcome to OUT-LAW Radio, the weekly podcast that keeps you up to date on all the twists and turns in the world of technology law.

Every week we bring you the latest news and in depth features that help you to make sense of the ever-changing laws that govern technology today.

My name is Matthew Magee, and this week we look at recently-granted police powers to force you to give up your computer password and ask: is it vulnerable to a challenge under human rights law?

But first, the news:

  • Football clubs' copyright case faces competition challenge; and
  • Google accuses Europe of sleight of hand

The right of football clubs to carve up foreign markets for broadcasting matches will be challenged at a full trial after the clubs failed to win a snap judgment against a firm selling Greek decoder cards to UK pubs so they could show live English football.

The Football Association Premier League (FAPL) accused QC Leisure and AV Station of breaching copyright law by selling equipment to show games.

But the companies said that attempts to stop them selling cards are in breach of the EC Treaty, which lays out the founding principles of the European Union and guarantees the right of free trade between member states.

The clash between copyright and competition law is an old one according to Kim Walker an intellectual property law specialist with Pinsent Masons, the law firm behind OUT-LAW.

"There has always been a tension between IP rights and competition law because IP gives exclusive rights to do certain things in certain places but competition law doesn't like the concept of exclusivity," he said.

Google has accused European Union authorities of attempting to use antitrust laws to tackle privacy issues. The company was defending its proposed acquisition of online advertising company DoubleClick.

The takeover has already been cleared by US consumer regulator the Federal Trade Commission but awaits approval from the European Commission, which is responsible for competition regulation in Europe. Though Google said that the Parliamentary hearing made an association between privacy and competition, the Commission itself has not yet mentioned such a link.

A European Parliament hearing into privacy on the internet discussed the proposed takeover. But Google's chief privacy counsel Peter Fleischer said "People are trying to take a privacy case and shoehorn it into a competition law review".

Dutch MEP Sophie in 'tVeld, who was behind the hearing, said that the acquisition of information was what made companies such as Google powerful, and what made privacy issues a factor in a competition inquiry.

That was this week's OUT-LAW news

The police have long had the power to search your emails and computer files and intercept your communications. But last autumn their powers were increased when the law was changed to allow them to demand that suspects hand over any passwords to unlock information that has been encrypted.

This was a major new development to which civil liberties activists fiercely objected. They said it eroded privacy and opened people up even further to possible abuse of process by authorities.

The new law has barely been tested, with only unconfirmed reports emerging of its use but could it be that anyone faced with such a demand could use other legislation to defend themselves? Is the new power at odds with existing law?

Some people think so. There is a long established tradition that prevents people from incriminating themselves or being forced to testify against themselves. Is being threatened with jail unless you tell police your password self-incrimination?
We'll hear from one criminal law specialist who thinks it could be, but first William Malcolm of Pinsent Masons, the law firm behind OUT-LAW, explains what last year's change to the Regulation of Investigatory Powers Act, or RIPA, means.

Malcolm: Part 3 of the Regulation of Investigatory Powers Act provides a statutory framework that enables public authorities to require protected or electronic information which they have obtained lawfully to be put into an intelligible form and in effect failure to comply with a lawfully issued order could land you two years in jail or five years in jail if the case involved national security considerations.

There could be a problem, though. if you are arrested you are told you have a right to remain silent under questioning. The Human Rights Act, which is based on the European Convention on Human Rights, gives you a right to a fair trial, and European courts have read this as meaning that you can't be forced to incriminate yourself.
Jonathan Rogers is a lecturer in law at UCL in London where he specialises in criminal law. He first explained why courts don't like to force people to give evidence against themselves.

Rogers: The normal principles of the right to silence is that nobody commits any criminal offence by refusing to talk to the police but a general principle on the statute makes particular exceptions and as we shall see a statute has made an exception in the case of not giving the key to encrypted data but the ordinary situation is that a person does no wrong by refusing to talk to the police and it is simply thought to be part of a civilised society that a man cannot be forced to incriminate himself as a matter of cruel choices I suppose. We don't think of it as being quite the same as torturing somebody but we nonetheless think it is not so very different if a man is told that he will commit one offence if he does not cooperate in giving material which will make him guilty of another.

We asked the Crown Prosecution Service what would happen if someone attempted to defend themselves against handing over a password by invoking the right to silence. It said that the new section of RIPA effectively trumps any right to silence.
"There is no absolute right to remain silent, not even in human rights law," a spokeswoman said. "It must be proportionate and necessary. Someone could try arguing it, but it is unlikely to be successful."
So what rights do we have? Article 6 of the Human Rights Act contains a right to a fair trial. This is where limited protection comes from, said Rogers.

Rogers: Article 6 provides us all a 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 the witnesses against you. Oddly enough in the text of Article 6 there isn't actually any words addressing the principle of self incrimination but the European Court read in those words of the text many years ago which of course gives them more flexibility in interpreting them.

Just last year the issue was tested at the European Court of Justice. A British driver, a Mr O'Halloran, was served with a speeding ticket from a police camera, but he refused to tell police who was driving the car at the time. He took his case all the way to the ECJ, which said that he should be forced to tell.
Rogers said that the court applied very specific tests, which would be used in other cases.

Rogers: So the question is when is it allowable? They said that this would depend on each case, on the nature of the compulsion put upon the defendant, the number of safeguards which exist and the use to which the information might be put. Obviously if you're forced to cooperate with the police on pain of being punished for a criminal offence, then that is pretty direct compulsion, so that in principle is bad but that's not the only factor. It's also relevant to consider whether there are any safeguards in the system so if the defendant really doesn't have the information then it's important to know whether or not he could still be penalised for not giving it. Other safeguards would also include whether the investigation is being authorised at a senior level and whether there is already some evidence against the defendant in the first place. Obviously the more evidence against the defendant the more reasonable it is to expect him to cooperate with the inquiry. And it's also relevant to consider to what use the information will be put.

So how would these apply in the case of the handing over of a password? Rogers emphasises that we can't know until it is tested, that the traffic offence case of O'Halloran can't be much of a guide to a major criminal investigation.
He said that a court may well decide that there is a conflict with the Human Rights Act, but that the fact that police need to have made some progress before demanding your key may work in favour of their demands.

Rogers: It's not as if the police can require the information to be given at the beginning of the investigation. They can only do so when they've made certain progress. So it might be that we would say to ourselves the requirement is actually proportionate and not a violation of Article 6 in which case we can just apply the statute as usual.

These very questions are facing a legal test in the US, where the constitution's fifth amendment grants an absolute right to avoid self-incrimination. There, a man is fighting a court battle to use that right to deny police the key to an encrypted drive that they suspect contains images of child abuse.

No such absolute protections against self incrimination exist here, and Human Rights law lecturer Colm O'Cinneide, also of UCL, says that while there is no reason why police shouldn't be allowed to search encrypted drives under a court warrant - just as they can unencrypted ones - the new section of RIPA can be seen as part of a creeping erosion of civil liberties in the UK.

O'Cinneide: I think the issue is here though, it certainly raises lingering concerns. There is certainly unease in general about the gradual erosion of our privacy and the opening up of closed spaces to government surveillance. The difficulty can be as a lawyer working this area is that the law doesn't necessarily provide very strong protection in this area and government investigating authorities and the police are amassing an awful lot of power. Usually on an issue by issue basis it all seems quite common sensical, it makes sense but what you're ending up with at the end of the day to a sort of incremental assessment of surveillance powers, you're ending up at the end of the day with very broad government surveillance powers.

Malcolm from Pinsent Masons, though, believes that RIPA itself offers people adequate protection of their rights.

Malcolm: Well I think it's important to bear in mind the public authorities who exercise powers to access this type of material under RIPA need to exercise their powers proportionately and consistently with their duties under Human Rights legislation and it's also worth bearing in mind that 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. Why? Well simply because by having that level of transparency we can ensure the protection of people's rights. So the Act itself is designed to ensure the protection of human rights and public authorities have a duty to exercise these powers proportionately.

Magee: That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on Be sure to tune in next week, for now goodbye.