PIU report and human rights

[Pete Chown]

We're saved!  Duncan Campbell has arrived!  :-)

Duncan Campbell wrote:

> It is trite to point out that [a reversed burden of proof] is logically
> absurd and rather more
> significant to point out that it is legally untenable.  Article 6 of the
> European Convention outlaws any requirement for the defendant to a criminal
> action to prove their innocence.

Also interesting is Funke v. France [1993] 16 EHRR 297.  In this case
the applicant was asked to hand over statements and correspondence
relating to foreign bank accounts, on pain of a fine or imprisonment. 
He refused and in the event was fined.  The ECHR decided that Article
6(2) -- the presumption of innocence -- created a right to avoid self
incrimination.  It was decided that this right had been infringed by the
requirement to hand over correspondence.

It seems to me that the whole idea of law enforcement access to
encryption keys could fall within the scope of this precedent.  The only
exception would be if a key was found without any positive action being
required by the defendant.  For example if the police were executing a
search warrant and found an unencrypted private key on a computer, the
defendant has not had to do anything active and so this could not be
described as self-incrimination.

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