Letwin wants increased penalties for refusal to decrypt

[Peter Fairbrother]

Owen Lewis wrote:

>> [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Peter
>> Fairbrother

>> Owen Lewis wrote:

>>> Is it reasonable that:
>> 
>>> -    That, under legal process, the contents of one drive on
>> X's PC may be
>>> searched for evidence but that X shall be permitted the 'human right'
>>> (ROTFL) to refuse disclosure another drive?
>> 
>> There must be a human right to at
>> least attempt privacy, and a right not to self-incriminate. GAK
>> denies both.
>> Any sentence for GAK "offences" is immoral (and GAK, like content
>> protection, won't work anyway for technical reasons).
> 
> *This* is the nub of it. X has his hard drive partitioned as a C: and a D:
> drive. He chooses only to encipher the contents of the D: drive (where he
> keeps most of his data). X is suspected of a crime and the police are
> permitted in law to search his house, office, garage and the files in his
> computer. Where is the 'human right' that enables him to thwart the search
> of his D: drive when he has no such right to thwart any of the other
> searches, including that of his C: drive.
> 
> There is no logic in this. The 'human rights' argument must be that all the
> searches described are oppressive


Not at all. Two different rights are involved, one is the right not to be
forced to self-incriminate. That's torture, demanding information by threat.
That the threat is being "banged up" in a cell rather than being "banged up"
by fists makes no difference, it's still oppression.

A wife can't be forced to testify against her husband. Can she be forced to
reveal his keys? How much less should a person be forced to testify against
himself?




The second right is the right to attempt privacy. Note I don't say the right
to have privacy, but the right to attempt it. This is a more subtle right,
but just as essential. For it to exist there must be a reasonable
expectation that some doable attempt will succeed.

All your examples either presume the guilt of the accused or leave it open.
Take a different example, where the person is in fact innocent. Requiring
that person to decrypt secrets which may embarrass the person to the point
of suicide (or hurt innocent, or even guilty, third parties), and jailing
them for failure to do so, is both unjust and oppressive.

The right to attempt privacy is much more important then that example, but I
can't find the words just now. Will post more later.




A last point is that there should be a balance such that the individual is
protected from unjust actions of the State, as well as the State being
protected from unjust actions of the individual. This is sadly lacking in
your arguments, as well as in RIPA, and in much other recent legislation.




[...]
>> Eh? How does a right to privacy and a right not to self-incriminate affect
>> "much of our law"? The "revenue raising and trade controlling functions of
>> governments" are not part of Law,
> 
> Oh yes they are, sunshine :-) They are the fun dental laws by which the

A function and a law are two different things. The "fun" laws may be a part
of the way the function is performed, but they are not the function itself.
That is an important distinction, although it may at first seem trivial.

[..]
>> Yep. Done a lot of hard thinking, posted much of it here, decided GAK was
>> far more evil than a few hiccups in the law-enforcement process. Your
>> criminal could defeat conviction by just not writing down the encrypted
>> information in the first place, or hiding the drive better.
> 
> That's playing cute with simple examples and takes us nowhere.

No it's not. Does the law demand that a suspect should provide the location
of hidden evidence? No. Occasionally there is a slightly similar situation,
when the evidence is a required thing, eg business records that are required
to be kept. Even then the offence is failing to provide the records, not
failing to say where they are hidden. And see the R. v Saunders story, whose
end is not yet in sight.

> The point is that there is simply no logic in supporting (or at least
> acquiescing in search of one area and not of another where the reason to
> search each is equally compelling.

But giving keys is not acquiescing, it's being forced to actively cooperate.

-- Peter Fairbrother