RIPA Part III

[Owen Lewis]

> -----Original Message-----
> From: ukcrypto-admin@chiark.greenend.org.uk
> [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of
> Casper.Dik@sun.com
> Sent: 14 June 2006 12:06
> To: ukcrypto@chiark.greenend.org.uk
> Subject: Re: RIPA Part III
>
>
>
> >If I may say so, that's a neat summation of the case. The key
> concern is one
> >of proportionality and not of principle. Can the use of the
> powers be fixed
> >to investigation of offences of an established grade of seriousness? E.g.
> >offences punishable by a maximum sentence of (say) not less than
> five year's
> >imprisonment?
>
> The problem with any form of proportionality, especially where cooperation
> of the suspect is concerned, is that it does away with the presumption
> of innocence.  You are taking measures because you /suspect/ a person
> of a particular crime, not because the person was convicted.
>
> That way, the police state lies.

I do not disagree with what you say only that 'presumption of innocence' is
and always has had limits. No one likes searches. They are, at the very
least, intrusive, upsetting and liable to make one's neighbours curtains
twitch. Nevertheless, by general consent we accept that search - by force
majeure if necessary - is required where there is a prima facie case on
implication in a serious crime. This is what the procedures for the issue of
warrants has been about for a *very* long time.
In short, search, under duress if need be, of a data store is nothing new in
principle. What is relatively new is the growth of the means and their use
effectively to thwart such searches by the use of cryptography.

The problem lies that data searches under duress lie very close to a breach
of the principle that a person may not be required to incriminate
themselves. All the most so since, precedent establishes that if a search is
ordered on the grounds of  but in the course of a search the police discover
B, they will not ignore B but will pursue investigation of that also, if B
is a criminal matter. Again, this is not particular to searches of data
stores or data communications but to all physical searches as well.

Investigation, including searches, can never follow conviction. Rather it
must always precede conviction and usually will also precede the development
and laying of charges. This is the way the system works - that it must
work - and computers and cryptography do not - should not be allowed to -
alter this. That said, it seems clearly in the public interest that there
are constraints put in place that prevent draconian powers being used as a
sledgehammer to crack little nuts.

A balance of evils rather than any matter of principle?

Owen