RIPA Part III

[Owen Lewis]

> -----Original Message-----
> From: ukcrypto-admin@chiark.greenend.org.uk
> [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Nicholas Bohm
> Sent: 16 June 2006 13:05
> To: ukcrypto@chiark.greenend.org.uk
> Subject: Re: RIPA Part III
>
>
> Owen Lewis wrote:
> >
> >>-----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.
>
> If you hide something so well the police cannot find it (with or without
> a warrant), the ECtHR has held (I forget the name of the case) that you
> cannot be compelled by law to say where it is.  It is at least arguable
> that encrypting something is analogous to hiding it where it cannot be
> found, and that compelling key disclosure or decryption are like
> compelling revelation of the hiding place.  If the ECtHR were persuaded
> of the validity of this analogy, it would hold much of Part III
> incompatible with the prohibition on self-incrimination.  In time we may
> find out.

We may indeed. It seems to me that the arguments are not one-sided. That
said, law develops as society develops. There can be no point in demanding
that some information is deciphered unless there is prima facie evidence
that the information exists - or at least some ciphertext exists which
obscures a plaintext which might be *the* information. If, to follow your
line of argument, the information is so well concealed that its existence is
cannot be shown, then I would expect that the authorities would have little
chance of enforcing any decryption order. But if, for example, a
cryptosystem plainly existed on a PC (or whatever) and there existed also on
that machine data that was, prima facie, in the form of cipher texts, then I
do not think there is concealment in a like sense.

We are still close to the beginning of a development that is going to
continue apace for a long time yet. If the courts were to decide that there
is an absolute right to withhold from scrutiny under due process any
information that may be held for any purpose, where would that place the
rule of law? There may be precedents. We all are liable to pay tax on our
profits or other income. The tax is normally assessed on the basis of
information which we provide and some other enquiries that the tax
authorities may wish to make. Suppose a man were to refuse to supply any
information from which calculation of the tax could be made - or were to
refuse to say that such information even existed. The man is not then
exempted from paying tax but is faced with an assessment, usually gauged to
be for more rather more than any calculated taxation might conceivably
amount to.

It seems to me that we discuss something not entirely dissimilar in that, in
specified circumstances, an individual may be required to make some
disclosure, that he might prefer not to make, to authorities, acting under
the law and to the will of the body public. If the individual refuses to
comply with such a requirement, he stands to be heavily penalised for making
that choice, the purpose and size of the penalty being such as to make
disclosure almost always the preferable option. This is not new. What is new
is the ubiquity and strength with which such refusals to disclose could be
made. Becoming universal and left without check this power could alter for
the worse the relationship between individual and society.

I do not deny that such requirement is a diminution of individual freedom.
Living in society is in part about a balance between the surrender of
individual liberties and the development of a common good, from which all
individuals in turn draw  benefit. This is a delicate balance and one that
needs continual redressing. I think we are discussing such a redressing. It
will indeed be interesting to see what the ECHR makes of it. Were I a
betting man, my bet would be that, it will either elect not to pass
judgement or, in this matter will moderate principle with pragmatism.

Owen