huridocs-tech UK: Electronic Communications Bill violates ECHR

From: Nizkor English Service <nzkspain@teleline.es>
Reply-To: nzkspain@derechos.org
Organization: Nizkor Spain
To: Nizkor Int'l Human Rights Team <nzkspain@derechos.org>
Subject: Gbr - British Electronic Communications Bill violates European 
 Convention on Human Rights.

Nizkor Int. Human Rights Team
Derechos Human Rights
Serpaj Europe
Information
10nov99

ELECTRONIC COMMUNICATIONS BILL FAILS HUMAN RIGHTS AUDIT.

JUSTICE, the legal human rights organisation, and the Foundation for
Information Policy Research today (Monday, 25 October) warn that those
aspects of the Government's draft Electronic Communications Bill which
deal with police powers to unscramble encoded e-mail are likely to
breach human rights standards under the European Convention on Human
Rights.

The Bill-intended to encourage electronic commerce and on-line delivery
of government services-allows the police to serve written notice to
demand either that a communication be decrypted or the private
encryption key be handed over.

According to our Human Rights Audit of the draft Bill, which is based on
an Opinion obtained from two leading lawyers, the Government has wrongly
opted for the widest police powers enabling open-ended interception of
encrypted material. The Opinion says that this "will have the inevitable
consequence of compromising the affected individual's whole security and
privacy apparatus" and thereby likely contravene Article 8 of the
European Convention, on respect for private life.

In a detailed audit of Part III of the Bill, the Opinion identifies
several other potential human rights breaches:

- The presumption of innocence is reversed: failure to comply with a
decryption notice will be a criminal offence unless the individual
concerned can prove that s/he does not have the key, or does not have
access to it because, for instance, the password has been forgotten.
This contravenes the right to a fair trial guaranteed under Article 6 of
the European Convention.

- The right to remain silent is likely to be breached: The police may
require the addressee of a 'decryption notice' to produce a private key
when it 'appears' that s/he has such a key; failure to produce it will
be a criminal offence. Disclosure of the key may lead to the discovery
of incriminating material. If used at trial, this is likely to infringe
Article 6 of the European Convention, which includes a privilege against
self-incrimination.

- There are inadequate safeguards against abuse: There is no provision
for independent judicial supervision of Part III as a whole, as required
by Article 8 of the European Convention. Instead, the proposed
Complaints Tribunal and Commissioner will only apply to those cases
where the interception warrant has been approved by the Secretary of
State under the 1985 Interception of Communications Act.

Peter Noorlander, Legal Policy Officer at JUSTICE, said:

"There are other, less intrusive ways of giving police access to
encrypted material when a crime is suspected. To ensure compliance with
human rights standards, the Government must re-think this part of the
Bill."

Caspar Bowden, Director of the Foundation for Information Policy
Research, said:

"The government is attempting to bolt decryption powers for the internet
onto existing interception laws. This legal analysis demonstrates why
this approach is unsound and is incompatible with basic human rights."

Note to Editors:

1. The Opinion is written by Professor Jack Beatson QC (formerly a Law
Commissioner) and Tim Eicke, barrister, from Essex Court Chambers.  A
full copy of the Opinion is available on the internet, at
http://www.fipr.org/ecomm99/ecommaud.html, or from the JUSTICE office.

2. The draft Electronic Communications Bill is included in a DTI
consultation document, Promoting Electronic Commerce. It is expected to
be introduced in the next parliamentary session.

3. JUSTICE is conducting human rights audits of current legislation.
Completed audits include the Immigration and Asylum Bill, Access to
Justice Bill, Youth Justice and Criminal Evidence Bill, Draft Freedom of
Information Bill and consultation papers on Anti-terrorism and the
Mental Health
Review. In 1998, it published a major report on covert policing, 'Under
Surveillance: Covert Policing and Human Rights Standards'.

4. The Foundation for Information Policy Research is the UK's leading
Internet policy think-tank, an independent non-profit organisation that
studies the interaction between information technology and society. FIPR
monitors technical developments with significant social impact,
commissions research into public policy alternatives, and promotes
public understanding and dialogue between technologists and
policy-makers in the UK and Europe.
------------------------------------------
For further information, contact Lib Peck, JUSTICE, on +44 (0)171 762
6419, or Nicholas Bohm (FIPR legal officer) on +44 (0)1279 871272.
-------------------------------------------
USEFUL LINKS:
- Global Internet Liberty Campaign - GILC (Main issues: free speech,
privacy, cryptography, access) http://www.gilc.org/
- Report on International Status of Privacy: "Privacy and Human Rights
1999". Electronic Privacy Information Center Washington, DC, USA.
Privacy International London, UK
http://www.privacyinternational.org/survey/
- "Cryptography and Liberty 1999: An international Survey of Encryption
Policy". Electronic Privacy Information Center Washington, DC
http://www2.epic.org/reports/crypto1999.html#_Toc450793110
- "An Appraisal of Technologies of Political Control". Scientific and
Technological Options Assessment - STOA. 06jan98.
http://cryptome.org/stoa-atpc.htm
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