huridocs-tech British Electronic Communications Bill violates European Convention

Edited/Distributed by HURINet - The Human Rights Information Network
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## author     : nzkspain@teleline.es
## date       : 02.12.99
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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.

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For further information, contact Lib Peck, JUSTICE, on +44 (0)171 762
6419, or Nicholas Bohm (FIPR legal officer) on +44 (0)1279 871272.
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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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