News Release FOR IMMEDIATE USE www.fipr.org/rip Tue 9th May 2000
Contact: Caspar Bowden (director of FIPR)
(020) 7354 2333 email@example.com
an unusual role-reversal of Party alignments on civil liberties, the
Conservatives opposed the Third Reading in a reasoned amendment that
harshly criticised the Internet snooping legislation for its "sad
inadequacy" on grounds of "repugnant" human rights
incompatibility, and uncompetitive burdens imposed on the UK's fledgling
e-economy. Home Office Minister of State Charles Clarke MP reacted
but the LibDems unaccountably supported the Bill whilst levelling the same
objections to the infamous "reverse-burden-of-proof" clauses on the
possession of keys to unlock computer data.
Heald MP (Shadow Home Affairs) lambasted the government for their refusal to
provide any detailed justification for the assertion that RIP is compatible
with the Human Rights Act, despite previous government assurances that such
legal controversies would be fully explored in parliamentary debate. The
provision requiring a person who has innocently lost an encryption key or
forgotten a password to prove this to a court on the "balance of
probabilities" in order to establish their defence, overturns the
presumption of innocence guaranteeing a fair trial under Article 6 of the
European Convention on Human Rights, according to a detailed Legal Opinion
commissioned by JUSTICE and FIPR. The government has refused an Open
Government request to disclose their legal advice, despite a Select Committee
recommendation that they should "publish a detailed analysis to
substantiate its confidence"
and government later declaring themselves willing to do so.
Simon Hughes MP (LibDem) mocked this, saying "I have never understood why
the Government are so reluctant to disclose the advice, which, by definition,
they must claim support their case".
government introduced amendments which would require a Commons vote before
imposing interception requirements on ISPs, but rejected a revived Tory motion
to create a Technical Approvals Board comprised of industry experts who would
vet Home Office interception wish-lists for cost and feasibility. Heald made a
powerful case, citing strong industry support (that Clarke had doubted in
Committee) for the TAB from the Federation of the Electronics Industry (who
said Heald had "clearly won the argument") and Internet switching
centre LINX ("we had always assumed there would be one"). Heald
referred to the Home Office's own consultation paper of June 1999 which had
promised "an independent body to provide impartial advice on how to
balance the requirements of the Agencies and CSPs. This should help to ensure
that any requirements are reasonable, proportionate and do not place CSPs at a
disadvantage compared with their competitors".
Glossing over this, Clarke said only that ongoing consultations with ISPs
would suffice, although ISPA and LINX have recently criticised the poor
quality and infrequency of consultation in an open letter of protest to
e-Envoy Alex Allen.
a telling passage, Clarke said that those organisations already subject to
interception requirements - i.e. telecommunication companies rather than ISPs -
were opposed to a TAB. When challenged whether the Home Office would seek to
canvass ISP opinion on this issue, Clarke restated that he had received no
requests on the matter and the "process was an open one".
rejected the £30m price-tag on costs to ISPs of installing and maintaining
interception equipment, because he said he did not envisage all ISPs being
required to intercept – tantamount to an admission that the Home Office has
abandoned its rationale of “levelling the playing field”. The £30m figure
was derived from the report of the Home Office's own consultants,
making the assumption that the largest 20 of the UK's 400 ISPs would have to
take up higher-cost options for blanket interception, whilst the reminder
would only install the cheaper "e-mail only" capability. Government
also rejected amendments that required ISPs to be compensated for interception
costs (rather than discretionary payments) and to report awards of such
payments to Parliament.
Cohen MP asked for clarification that communications data, which he pointed
out could be requisitioned by thousands of designated public authorities,
could not later be used for other purposes such as collection of council tax
or vehicle excise. The reply was ambiguous, Mr.Clarke referring only to data
protection principles, declining to comment on (DPA98 S.29) tax and customs
exemptions which would ostensibly allow inter-departmental fishing expeditions
– but did confirm that acquisition of communications data for national
security purposes was wholly exempt from controls. Mr.Cohen pointed out
that there was no audit trail for any secondary transfers of data, and
therefore the Commissioner would be unable to monitor its occurrence or report
abuse. Mr.Cohen also deplored the fact that the Data Protection Commissioner
had not been given the oversight role for communications data, and referred to
her comments on the RIP Bill as “scathing”.
The Interception Commissioner now has this responsibility, together with
telephone tapping, e-mail interception, and official access to all other types
of communications data. Last week the Home Office confirmed that logs of
websites browsed are considered communications data, and therefore no warrant
is required for any public authority to look at the Web browsing habits of any
citizen for any of the very broad purposes allowed (there are also
secondary powers to create further purposes not specified on the face of the
referring to the FIPR/JUSTICE opinion and describing as "repugnant"
the reverse-burden of proof defence requiring a
demonstration of something logically impossible, Mr.Heald said that RIP
snapped the "golden thread" of British justice - that to be guilty
of a criminal offence a person must have a guilty mental intention - 'mens rea'.
Mr.Clarke amended S.69 to exempt company directors from liability under
Part.III - that is, they are no longer personally liable for failure of their
company to comply with a decryption notice. This was the chief cause of FIPR's
diagnosis of government strategy as being that of "key escrow by
intimidation" - however it still leaves individuals and company employees
in the firing line.
Maclean MP gave an eloquent and forthright denunciation of the S.49 offence,
saying that it was simply unjust and wrong. When replying on the crux issue of
burden-of-proof, Mr.Clarke repeated puzzling previous references to the defence
only having to make its case on the "lower” burden of the
balance of probabilities - suggesting that he understands
"reverse-burden" to mean the defence having to prove innocence
beyond reasonable doubt (sic), a concept unknown in any legal system. He
re-iterated his position in Standing Committee that the accused could explain
what had happened to the key or passphrase, and the court would take that into
account. When Simon Hughes MP intervened to point out that these would be
excellent arguments if the accused were being given the benefit of a
reasonable doubt, instead of a 50:50 chance, Mr.Clarke simply said he did not think
Mr.Hughes' view was right.
also said he would consider increasing the prison sentence for a S.49 offence
if it appeared that serious criminals were resorting to the cunning plan of
claiming a bad memory (a subterfuge which FIPR wrote repeatedly to the Home
Office about more than two years ago without receiving any reply).
government introduced an amendment that a key could be demanded instead of
plaintext only if it was believed there were "special
circumstances", for example a notice served on a suspect rather than
a Key Recovery/Escrow Agent - who by definition was not to be trusted to supply the plaintext of
incriminating material. The word "exceptional" rather than
"special" had been considered and rejected (because it did not
give enough "legal flexibility"),
and Mr.Clarke did not
repeat earlier assertions that access to keys would only be necessary in a
tiny minority of cases.
government again rejected Opposition amendments to unify the system of five
Commissioners (six including the DPC), but agreed instead to a "unified
secretariat" and the provision of an unspecified capacity to undertake
investigations, although the secretariat would operate on a
"need-to-know" basis. None of the Codes of Practice arising from RIP
were available, and the government promised only to have drafts ready before
the Bill became law. Absent from the debate were all members of the
Intelligence and Security Committee, the parliamentary watchdog charged with
oversight of Britain's spy agencies, who were on an official visit to
Washington on committee business.