25 October 1999
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
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
- 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
- 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
definitively why this approach is unsound and is incompatible with basic human
Note to Editors:
- 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.
- 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.
- 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’.
- 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 from a
broad perspective. 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 0171 762
6419, or Nicholas Bohm (FIPR legal officer) on 1279 871272.
Go to FIPR front page.
Go to FIPR E-Comm99 Draft Bill Review page.
Go to FIPR Electronic Commerce Policy Information Centre.
Go to FIPR Interception of Communications Information Centre.
Go to FIPR Regulations of Investigatory Powers Information Centre.
Document created in HTML on October 24, 1999.