Skip to comments.Two convicted for refusal to decrypt data
Posted on 08/11/2009 10:23:28 AM PDT by ShadowAce
Two people have been successfully prosecuted for refusing to provide authorities with their encryption keys, resulting in landmark convictions that may have carried jail sentences of up to five years.
The government said today it does not know their fate.
The power to force people to unscramble their data was granted to authorities in October 2007. Between 1 April, 2008 and 31 March this year the first two convictions were obtained.
The disclosure was made by Sir Christopher Rose, the government's Chief Surveillance Commissioner, in his recent annual report.
The former High Court judge did not provide details of the crimes being investigated in the case of the individuals - who were not necessarily suspects - nor of the sentences they received.
The Crown Prosecution Service said it was unable to track down information on the legal milestones without the defendants' names.
Failure to comply with a section 49 notice carries a sentence of up to two years jail plus fines. Failure to comply during a national security investigation carries up to five years jail.
Sir Christopher reported that all of the 15 section 49 notices served over the year - including the two that resulted in convictions - were in "counter terrorism, child indecency and domestic extremism" cases.
The Register has established that the woman served with the first section 49 notice, as part of an animal rights extremism investigation, was not one of those convicted for failing to comply. She was later convicted and jailed on blackmail charges.
Of the 15 individuals served, 11 did not comply with the notices. Of the 11, seven were charged and two convicted. Sir Christopher did not report whether prosecutions failed or are pending against the five charged but not convicted in the period covered by his report.
To obtain a section 49 notice, police forces must first apply to the National Technical Assistance Centre (NTAC). Although its web presence suggests NTAC is part of the Home Office's Office of Security and Counter Terrorism, it is in fact located at the government's secretive Cheltenham code breaking centre, GCHQ.
GCHQ didn't immediately respond to a request for further information on the convictions. The Home Office said NTAC does not know the outcomes of the notices it approves.
NTAC approved a total of 26 applications for a section 49 notice during the period covered by the Chief Surveillance Commissioner's report, which does not say if any applications were refused. The judicial permission necessary to serve the notices was then sought in 17 cases. Judges did not refuse permission in any case.
One police force obtained and served a section 49 notice without NTAC approval while acting on "incorrect information from the Police National Legal Database", according to Sir Christopher. The action was dropped before it reached court. ®
Even though this is over in the UK, look for this kind of thing to show up here in the US soon, particularly the “domestic extremists” aspect coupled with the current administration’s attitude towards conservatives.
The fifth amendment allows you freedom from self incrimination.
Exactly. We need to be vigilant in regard to laws around the world, as the liberals tend to look to them in enforcing and “interpreting” our own.
Death before decryption!
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
They not only have a Surveillance Commissioner, but they have enough of them that one ranks as CHIEF? And no one there has a problem with this?
The British are subjects. We are citizens. There is a difference--in reality and in attitude.
The British also repealed their 800 year old prohibition against double jeopardy in 2005.
I can envision this happening here, the way things are going. Of course, for me, most of my encryption goes like: ime-tay oo-tay ive-gay e-thay ats-cay e-thay edicine-may. Unfortunately, my cats often seem to know how to encrypt this...
The solution to this seems to be straightforward. A one use decryption key is generated in another country. If sent to you on request, it will decrypt your files once. Once a week or so, you must provide that foreign source with a ping of some description, or it will no longer provide you with a key. Your files will be locked for good.
Of course this will require all sorts of security additions, maybe even multiple keys from multiple countries. And the hassle of having to ping some address once a week.
The downside is that in some cases, judges are citing for contempt even if you are unable to produce what they want. A man in Philadelphia was just released after being held for contempt for 14 years on the belief that he had hidden money from his ex-wife in a divorce case.
While this is terribly unfair, unless you give them the tools to convict and punish you, you may very well be punished.
That would be H. Beatty Chadwick, a man kept in prison for 14 years on civil contempt charges. A judicial travesty that should have never happened. A victim of a group of black robed thugs.
My heart sank when I read the headline, and then I realized it was in the UK. Don’t worry us like that :)
The district court judge has overruled the magistrate, holding that, while they cannot compel him to provide the password, they can compel him to provide an unencrypted copy of the encrypted volume without violating those rights. Seems like a distinction without a difference. Stay tuned.
One difference: if he uses his (still-secret) password to decrypt a copy of the material in question, the action only affects the material in question.
Whereas if he provides his password, he has effectively lost his privacy on ALL his so-encrypted data, whether it applies to this case or not. A much larger loss.
I use PGP/GPG for encryption of my private data, and while I would fight tooth and nail against relinquishing my passphrase, I would consider agreeing to decrypt selected content in a court case. Depends...
And of course, in any event, the minute I could do so, I would change the old passphrase associated with my private key to something else.
Actually we have been ‘citizens’ since 1981, and the British Nationality Act.
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