A few of us kicked and shouted about this when this was proposed. If you'd like an example of how this is being abused, El Reg has a good article from 2009: http://www.theregister.co.uk/2009/11/24/ripa_jfl/
> He returned to Paddington Green station as appointed on 2 December, and was re-arrested for carrying a pocket knife.
FTR, carrying a pocket knife is perfectly legal in the UK (assuming it was within a certain size).
> Officers bearing sub-machine guns broke down the door of JFL's flat. He rang local police before realising CTC had come for him. [...] JFL maintained his silence throughout the one hour time limit imposed by the notice. He was charged with ten offences under section 53 of RIPA Part III, reflecting the multiple passphrases needed to decrypt his various implementations of PGP Whole Disk Encryption and PGP containers. [...] In his final police interview, CTC officers suggested JFL's refusal to decrypt the files or give them his keys would lead to suspicion he was a terrorist or paedophile.
And my favourite paragraph:
> "There could be child pornography, there could be bomb-making recipes," said one detective. "Unless you tell us we're never gonna know... What is anybody gonna think?" JFL says he maintained his silence because of "the principle - as simple as that".
He was taken into custody for, among other things: Failing to attend multiple bail hearings; Falsely claiming that a passport that had been legally seized by the police was lost, bearing in mind he'd previous missed bail hearings by traveling abroad; Refusing to comply with lawful requests for access to his computer, etc, etc.
There is no '5th Amendment' in the UK, no right of silence and no Miranda rights. There never have been. We do have our own limitations on the rights of police officers conducting an investigation though. If officers have the proper warrants, I think it's reasonable that they are entitled to access to computer records in much the same way they are entitled to access to any other part of someone's property, business and private records.
He was willfully obstructive and obtuse, and suffered the consequences for it, but no more than that. The sectioning is of course a matter for concern, but it requires proper medical oversight and bearing in mind his previous history of mental illness there's no particular reason to believe it was malicious.
Actually there was a Right to Silence, in common law. It was removed by statue in the extremely controversial 1994 Criminal Justice Act (which many of us demonstrated against).
Ok, the situation is more nuanced than I might have indicated. There is a right to silence in criminal law, and you can remain silent in civil law too. You cannot be prosecuted for remaining silent, or directly legally coerced into giving a statement.
However, specific inferences can be drawn from your silence in some circumstances. For example not mentioning something in you statement to police that you later rely on for your defence in court can be taken into account.
So we don't have an absolute right to remain silent, and doing so under suspicious circumstances can get you in trouble, but you can't be prosecuted just for not making a statement.
That's completely back asswards. They have the right to request and require access, as pecufied in their warrant, and if you refuse or are unable to comply then they have the further right of forced entry. They have no 'burden' to do so other than their general 'burden' to perform their duties.
FTR carrying [some] pocket knifes is legal in England and Wales. It is a criminal offence in Scotland.
The UK consists of England, Wales, Scotland and Northern Ireland. 3 different legal systems (though England and Wales and Northern Ireland are similar).
Scotland is radically different with many things being criminal offences in Scotland but are perfectly legal in the other 3 countries, e.g. certain types of violent pornography are serious jail time in Scotland but legal elsewhere in the UK. Plus the knife thing, obviously. Children of 8 years are criminally responsible [i.e. /are/ prosecuted] in Scotland but it is older elsewhere in the UK.
> It is illegal to [...] carry a knife in public without good reason - unless it’s a knife with a folding blade 3 inches long (7.62 cm) or less, eg a Swiss Army knife.
The case is absolutely awful, but he was jailed for refusing to hand over the key, which is (according to the article) exactly what he did. The article is very kind to the suspect here, and nowhere does it even suggest that he had lost the key or otherwise wasn't able to decrypt the files.
Since when is refusing to incriminate oneself punishable with jail time? Last time I checked it wasn't.
Refusing to provide encryption keys is the same thing. There might be illegal data, there might not be. It's the duty of the police to prove it, not the accused.
This is the UK not the US. They don't have a 5th amendment.
In the US courts are split on the issue. Some say giving an encryption key is testifying, an act of the mind, and you can't force someone to testify against themselves under the 5th. Others say its like handing over a regular key, which you can be forced to do, because the 5th covers testimony, not everything incriminating. It was intended to prevent forced confessions.
Once you're in front of a court you don't get to keep secrets, with the exception of some narrow protections. This has always been the case in the Anglo-American system.
The debate is partly this: forcing you to produce an encryption key /also/ testifies that the drive belongs to you (or you had access to it).
You are not necessarily obligated to testify to that fact for the police, and unless they can demonstrate that the drive belonged to you (or you had access) through some other means, the production of an encryption key is tantamount to forcing that confession.
It's much like if there were a lock on a gun they found on the street: if they can't link the gun to you already, they can't demand you turn over the combination for the lock, because knowing such a combination would be a tacit admission to knowing about the gun.
I'd think it's also an issue of the 4th. Consider sharing a machine with different user accounts. Asking me to decrypt a drive just might be an unreasonable search, because outside of logical partitioning, there's no concept of "a user's files" when the police just use a disk copy tool to pull all files off the disk.
We don't have anti-incrimination laws. If you go in front of a judge, the judge has the right to all relevant information with which to make a decision. What happened here is that the judge asked for the keys and was refused them. Plain and simple. If you don't trust your judicial system to (eventually) get to the right answer, you've got bigger problems.
"there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure"
The case concerns a claim that it was injust to make inferences as to the guilt of the appellant based on their choice to remain silent before the police and court. This appeal under Art.6 ECHR failed (though a claim of preventing access to an attorney succeeded). The court finding that there was no undue inference made, that any inferences as to guilt that had arisen out of the defendants failure to break silence were allowable.
I'm not sure this really helps so much as it seems as it appears to allow the [partial] curtailment of presumption of innocence.
It's interesting that the article conflates right to silence and self-incrimination, I thought they were kept separate. It mentions the exception for encryption but doesn't mention any exception for safe codes which is what my line of thinking was based on. That being said, I can't find a reference to that either...
nope, it's one of those laws that the police can use on anyone they don't like, anytime. There was a good article of how this "criminalise everyone, and then only prosecute the ones you don't like" attitude was essentially how the US operates by default nowadays - It was on HN a few months ago but I can't find it now.
apologies if I wasn't clear; there are plenty of laws "still on the statute book" which everyone breaks but which would never be prosecuted. e.g. copying music from CD to iPod before about 2010, or compulsory archery practise with the parish vicar on the village green on Sundays.
I was drawing the distinction between that type, which are simply archaic, and this type, which have been designed to incriminate everyone.
there was a chap who had this law used against him a few years back, I don't remember what happened though but it was a big deal at the time.
It was to do with encrypting random data for physics or a game or something and the government got hold of it but because the data was encrypted one way he couldn't give them a key and he was going to go to prison for two years.
I've heard nothing about it since though with all this PRISM stuff and people encrypting their emails I'm surprised it hasn't resurfaced sooner.
