Surveillance bill under fire

["http://www.hyperreal.art.pl/cypher/remailer/" <mix@hyperreal.art.pl>]

http://news.bbc.co.uk/hi/english/sci/tech/newsid_638000/638041.stm

The UK Government came under fire on Thursday from the internet community 
after it published a Bill to regulate covert surveillance. 

The critics say the legislation, if passed, could lead to innocent people 
being sent to jail simply because they have lost their data encryption codes. 

The Regulation of Investigatory Powers Bill covers the monitoring and the 
interception of communications by law enforcement and security agencies. It 
will, for example, lay down the legal rules that must be followed by the 
police and security services when they tap someone's phone. 

It also regulates the authorities' access to the codes that encrypt data sent 
over the net. Such encryption will increasingly become a routine tool of 
e-commerce, built into ordinary e-mail and browser software. But the Home 
Office is deeply concerned that criminals, such as paedophiles, will use 
encryption to hide their activities. 

And, as a result, the Bill proposes that the police or the security services 
should have the power to force someone to hand over decryption keys or the 
plain text of specified materials, such as e-mails, and jail those who 
refuse. 

The government believes it has built sufficient safeguards into the 
legislation. But Caspar Bowden, from the Foundation for Information Policy 
Research, said the law as drafted was "impossible" and accused the government 
of ignoring all the advice and lobbying it had received from the net 
community over the past year. 

Net privacy

At issue is the burden of proof. Critics of the legislation say someone might 
go to jail unless they could prove they did not have a requested key - an 
impossible defence for someone who has lost the software code. 

"This law could make a criminal out of anyone who uses encryption to protect 
their privacy on the internet," Mr Bowden said. 

"The Department of Trade and Industry jettisoned decryption powers from its 
e-Communications Bill last year because it did not believe that a law which 
presumes someone guilty unless they can prove themselves innocent was 
compatible with the Human Rights Act. 

"But the corpse of a law laid to rest by Trade Secretary Stephen Byers has 
been stitched up and jolted back into life by Home Secretary Jack Straw." 

Under the new legislation, the police would have to have "reasonable grounds 
to believe" someone suspected illegal activity had a key. Previous attempts 
to draft the legislation had only used the word "appear". 

Human rights 

Caspar Bowden acknowledged that the change replaced a subjective test with 
one requiring some objective evidence. The prosecution would have to show 
that someone receiving encrypted e-mail has or had a key. However, he said 
the presumption of guilt remained for those who had genuinely lost or 
forgotten their keys. 

"It's clear we are heading for the courts with a human rights test case," Mr 
Bowden told BBC News Online. "The legislation could be amended, but it's 
obvious the government is not going to take that course." 

However, the Home Secretary, Jack Straw, is clearly confident about the legal 
advice he has received. 

"The Human Rights Act and rapid change in technology are the twin drivers of 
the new Bill," he said. 

"None of the law enforcement activities specified in the Bill is new. Covert 
surveillance by police and other law enforcement officers is as old as 
policing itself; so too is the use of informants, agents, and undercover 
officers. 

"What is new is that for the first time the use of these techniques will be 
properly regulated by law, and externally supervised, not least to ensure 
that law enforcement operations are consistent with the duties imposed on 
public authorities by the European Convention on Human Rights and the Human 
Rights Act."