Minister promises that Part III is coming

[Owen Lewis]

> -----Original Message-----
> From: ukcrypto-admin@chiark.greenend.org.uk
> [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Caspar Bowden
> Sent: 15 May 2006 14:30
> To: ukcrypto@chiark.greenend.org.uk
> Subject: RE: Minister promises that Part III is coming
>
>
> >admin@chiark.greenend.org.uk] On Behalf Of Owen Lewis
> ..
> >> [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Caspar
> Bowden
> ..
>
> >Won't fly for me. But then you address a person who does not believe at
> all
> >in the conceit of 'human rights'.
>
> What do you mean by that? A fortiori, do you believe there are some
> circumstances when it is acceptable for a state to impose inhuman or
> degrading treatment or punishment?

With respect and without any intention to duck, you ask the wrong question.
What definition of 'acceptable' shall apply and 'acceptable' to whom? I
therefore answer as follows:

		-	The imposition of some unpleasant conditions by one upon another is
occasionally made. There is no inalienable 'human right' that this should
not be so.

		-	'Inhuman' and 'degrading' are relative terms and have no absolute
status. It follows that circumstances to which either of these adjectives is
applied become relativistic and have no claim to an absolute status.

		-	I know that there are circumstances in which such claims are made. Some
might seem to me and for other reasons that I find sufficient to deserve
intervention: there will be other claims that do not so move me.

		-	Other than as may be set into governing law, there is no 'right' that
degrading or inhuman circumstances (and much else) should not pertain. In so
far as such exists, it is a conditional grant by the governing to the
governed. It is conditional because not only can it be granted by the
governing power, which is sovereign, but it can at anytime be removed by
that same sovereign power or by its successors who are not bound by the acts
of their predecessors.

But you know all this and surely do not disagree. The point of difference is
that some cry 'Human Rights!' as an act of faith in which temporal authority
is accorded an absolute, eternal and unarguable status that, in previous
times was, in our society, once accorded to divine authority alone. I prefer
to think that the earlier system of belief is at least as rational as the
current one and that both are dangerous and essentially human conceits.

>
> >It seems probable that your view rests on some especial moral
> >repugnance for the offence of 'child molestation'.
>
> No. I chose that horseman because it arguably has the most tabloid
> potency, and therefore is some kind or viability test for a new
> proposal.
>
> >what is sauce for the goose must be sauce for the gander.
>
> What do you mean by that? Is it a human right (which you don't believe
> in) for a convict to be treated equally with a non-convicted citizen, in
> all respects, even during the term of a sentence?

Since, as you say, I don't believe in human rights, the second question
self-destructs. And before you think to ask whether I believe in equality, I
answer that, demonstrably, inequality is the norm in most relationships in
life (all life and not simply human). Some sense of balance or overall
harmony or at least tolerability is commonly attained through the myriad
contrary pulls of small inequalities which, some favourable and some not,
produce overall either no or only some moderate vector for change. Almost
akin to a model of Brownian motion. This concept is anathematic to that of
human rights and the pro-active social engineering (of which development of
the law is a part) that stems on from it and is supposed to take us all far,
fast and together in the determined direction, regardless that many really
do not want to come on the headlong ride.

>
> >> ..." The problem is the imposition of "decryption jeopardy" on
> everybody
> >> indiscriminately."
>
> >And that lack of discrimination to which you refer is, pretty exactly,
> >application of the same sauce to both goose and gander, is it not?
>
> Still don't know what you mean by that

That what the law decrees shall apply to all in (nominally) equal measure.
This should be as true for the investigation of crime prior to a finding of
guilt as it is to the subsequent processing of persons found guilty. It
further means that all who have served out their sentences are let free to
pick up their lives without especial constraint by the state.

>
> >And should not the law apply equally to all?
>
> This (putative) law says that if a person is convicted of X, then as
> part of their sentence, they will be told to ensure that they can
> decrypt data in their possession (for X years after their release).

And why this person and not that? The essential point is whether or not
there should be for any who live in society an absolute right to conceal
information from organs of the collective social body (state) as and when
those organs proceed to make proper inquiry. As said, this is no simple
debate and there is force on both sides. One can argue that some point of
balance should be established and also that that point of balance must
inevitably shift from time to time. I do not think one can argue
convincingly for a binary condition in which Peter, as a free man who has
discharged his obligation to the state should suffer *at the direction of
the state* any continuing penalty that Paul, who has also discharged his
obligation, does not. If, as a banker or a lawyer, one is jailed for fraud,
one probably won't ever work again as banker or lawyer - but that is a
matter for one's prospective employers and the governing body of one's
profession. It surely ought not to be for the state to direct through the
method of court sentencing.


> The interesting point to debate in ECHR I think is whether telling a
> convicted felon that they must take care to be able to decrypt is
> inhuman or degrading (and thus a no-no under Article 3).

I can't see  it is either inhuman nor degrading. But whilst we are about it,
serving a prison sentence is surely degrading but (for the time being at
least) the HR fans are remarkably silent about that little anomaly.

> I claim this is no problem because:
>
> a) if you believe in such things, it's no worse imposition than an ASBO
> or a control order (which were not invented in 2000)
> b) if you don't like ASBOs or control orders, it must be still be
> admitted that vicious felons have always been guarded more closely than
> the non-vicious, and the DODO (Decrypt On Demand Order) would be a
> proportionate species of public safety measure, according to a risk of
> harm evaluation.

Won't fly. Though the violent may be confined in a manner commensurate with
giving reasonable assurance to the safety of others, once their sentence is
complete, they are as free as the next man; they do not have to wear
manacles nor even have to move about preceded by a policeman waving a red
flag. And that is the way I would have it remain.
>
> However, I also claim that a DODO is psychologically quite cruel (but
> lots of things are cruel but not inhuman or degrading), so it should not
> be as widely used as an ASBO.

How is it more cruel to live now with the knowledge that decryption may one
day be required of one that it ever was to live with the knowledge that that
their were rights of discovery through seizure before automated cryptogaphy
could be on everyone's desk?
>
> This also goes to the "necessity" part of Art.8. It seems to me very
> difficult to argue that you it is necessary to put the entire population
> of a democracy in "decryption jeopardy", if the lesser measure of
> putting only certain convicted criminals in such jeopardy hasn't been
> tried first.

If a policeman has sufficient reason (and that is not much) he may stop me
as I go about my business and search me and my vehicle. I *really* do not
like it when that power is exercised against me but I would not claim that
it was cruel - even less that simple knowledge that a police power to do so
existed was, of itself, cruel to me. Moreover, in moments of quiet
reflection, I admit that all are better off because such a power does exist
this world in not inhabited by angels. The world I would least wish to see
is one in which, say, all black men under the age of 35 were exempted from
such checks but I was not.
>
> >Rather, this seems one of those matters in which reasonable all but
> >irreconcilably conflicting demands require that law be developed and
> >implemented in a way that provides for the least harm to be done to the
> >common weal rather than to attain any great good.
>
> Well of course that status quo presumably suits those who advocated that
> the structure of RIPA Pt.III is good and/or there is no alternative.
>
> I'm claiming that RIPA Pt.III in its current unnecessary generality
> ought-to-be/will-be struck down

That's a reasonable view that is debatable. For myself, I do not agree. I
think that it is unlikely to be struck down and, for all the concerns with
it, I cannot suggest a way ahead that markedly serves better the common
good.

> ...... and that a DODO is an HRA compliant
> alternative.
>
> I hope you agree my choice of a sexy name shows the marketroid in me is
> really flourishing in my new employment.

Nah. You've spent to much time talking with Brian Gladman. He's normally the
one to come up with the catchy tags ;-)

Owen