Letwin wants increased penalties for refusal to decrypt

[Nicholas Bohm]

At 10:01 20/08/2002 +0100, Owen Lewis wrote:


> > -----Original Message-----
> > From: ukcrypto-admin@chiark.greenend.org.uk
> > [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Paul Leyland
> > Sent: 19 August 2002 15:50
> > To: ukcrypto@chiark.greenend.org.uk
> > Subject: RE: Letwin wants increased penalties for refusal to decrypt
>
>
> > ....Sorry, I got a bit carried away there.
>
>De Nada.
> >
> > Anyway, the point is that he may permit the authorities to search
> > his stores of information but, until RIPA, there was nothing to
> > say that he has to chose to make the search easy for them either
> > as a whole or in part.
>
>But there was. He would have to unlock his rooms, safes etc and surrender
>such items as the investigators thought they might require.

Not so.

In criminal matters (and the civil side is very different), we are talking 
about search warrants.  Their effect is to relieve the searcher of 
liability for civil or (some) criminal wrongs involved in searching, 
nothing more.  They impose no duty on the victim to help, nor penalties for 
failing.  And there is of course no duty to say where anything is hidden 
(and an ECtHR decision to the effect that no such duty can be imposed).

Of course, you may prefer to hand over the keys to your safe rather than 
see it drilled and ruined, but that's your choice.  And if the safe is 
designed to destroy its contents when tampered with, you may prefer to let 
it perform its function.

RIP is different.  It imposes a duty to co-operate in a search in a 
criminal investigation, subject to criminal penalties.  This is a wholly 
new departure in criminal investigation (with the possible exception of 
some analogy with being compelled to answer DTI inspectors' questions 
before being prosecuted on the basis of the evidence so obtained, no held 
to be incompatible with the ECnHR).

It certainly seems strange to be proposing changes to penalties for 
non-disclosure when there is no experience of the usefulness or 
effectiveness of the requirement.

On the civil side, the courts have never hesitated to order disclosure of 
documents and to impose penalties for contempt of court in case of 
failure.  I have no doubt they would order decryption on the same basis, 
though disclosure of keys might take some considerable justifying before a 
court could be persuaded that decryption was not enough.

Regards

Nicholas

Salkyns, Great Canfield,
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