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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.