Earliest ref. to reverse-burden/onus-of proof ? (was RE: Clarke Open Letter in Telegraph Connected..)

[Yaman Akdeniz]

On 23 Mar 00, at 19:11, Caspar Bowden wrote:

> > The letter is at http://www.cyber-rights.org/reports/blair-letter.htm
> > but the Prime Minister nor his office ever replied to this letter to
> > date.
> 
> Thanks for pointing this out - sorry overlooked. Acknowledged and
> corrected.
> 
> It reminded me that the first (?) reference to reverse burden is 26th May
> 1999: Cabinet Office report on "Encryption and Law Enforcement":
> 
> "...further attention should be given in the Bill to placing the onus on
> the recipient of a disclosure notice to prove to the authorities that the
> requested keys or plain text are not in his possession, and to state to
> the best of his knowledge and belief where they are. has not been made
> effectively"

Yes our response was triggered by that paper.

> Anyone know anything earlier? Or who's bright idea this was...

Well it was the Labour Party Manifesto that initially suggested this 
back in 1995 - "the only power we would wish to give authorities, in 
order to pursue a defined legitimate anti-criminal purpose, would be 
to enable decryption to be demanded under judicial warrant" - but 
there was NO mention of the issue of reversal of burden of proof at 
the time.

The issue was also discussed at the OECD December 1995 Ad Hoc Meeting 
according to Bert-Jaap Koops in his excellent book The Crypto 
Controversy: A Key Conflict in the Information Society.


Mr. Yaman Akdeniz,
Director, Cyber-Rights & Cyber-Liberties (UK)
Url: http://www.cyber-rights.org
E-mail: lawya@cyber-rights.org
Tel: +44 (0) 498 865116
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