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Date: 1999-11-18

UK, AT: ENFOPOL Alerts


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Die dümmsten Passagen zum Thema Krypto-Regelung , von
den gesetzlich ermächtigten UK-Behörden in die E-
Commerce Bill hineingedrückt, sind augenscheinlich
amputiert, in Wirklichkeit nur für einen Gesetzes/zusatz
aufgeschoben.

Weil dieses UK-Vorhaben RIP heisst [Regulation of
Investigatory Powers] findet Caspar Bowden [Foundation for
Information Policy Research] auf gut britisch das Akronym
R.I.P viel passender.

Wie im UK werden allüberall die juridischen Bausteine der
Überwachung separiert und verteilt: auf multilaterale
Rechtshilfeabkommen, nationale Gesetze, parallel dazu
werden relativ moderate neue EU-Richtlinien dazugeflüstertet.
Obacht: In AT ist eine Modifikations/vorlage schon nexte
Woche im Parlament.

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SURPRISE BILL TO REGULATE SURVEILLANCE

The big surprise in the Queen's Speech is the REGULATION
OF INVESTIGATORY POWERS (R.I.P) bill (Home Office
release appended below). This will update the Interception of
Communications Act, regulate covert surveillance and use of
informers, and provide powers to decrypt coded e-mail (in
ways which are still unclear).

E-COMMS BILL GETS OUT OF JAIL FREE

The controversial Part.III of the Electronic Communications
Bill has been dropped, but will be recycled in some form in
the new R.I.P Bill.

Caspar Bowden, director of the Foundation for Information
Policy Research, said that:

"The e-Minister (Patricia Hewitt) must be congratulated for
performing a skilful political amputation to save British e-
commerce. The shortened Bill still threatens unnecessary
regulation, but at least now can do much less harm."

DECRYPTION POWERS R.I.P ? QUESTIONS REMAIN ON
HUMAN RIGHTS.

The HO press release offers tantalising hints of new thinking
on civil liberties. Until today the Home Office had adamantly
maintained that Part.III of the Bill created no human rights
issues (see Notes below). The new statement says that the
bill is needed to "strengthen the regulation of covert
surveillance and other intrusive investigative techniques used
by public authorities to meet the requirements of European
Convention on Human Rights (ECHR)".

Bowden said of the previous proposals, "the glaring flaw was
reversing the burden of proof on possession of a decryption
key. If this remains unchanged, this government will find itself
on the losing side of its own 1998 Human Rights law"

The HO Press release says that for encrypted data, law
enforcement will get "specific powers to enable them to make
that data intelligible".

But Bowden continued: "The Home Office press release
avoids the burden-of-proof issue with ambiguous wording.
This may indicate either that the policy is in play, or that the
new RIP bill will turn out to be window-dressing."

"By introducing the Bill, the government acknowledges the
need for new thinking on interception and encryption. FIPR
believes that strong human rights safeguards are in the best
interests of law-enforcement"

Notes for Editors:

1. FIPR is the UK's leading Internet policy think-tank: an
independent non-profit organisation that studies the
interaction between information technology and society. It
does not represent the interests of any trade-group and its
goal is to identify technical developments with significant
social impact, commission research into public policy
alternatives, and promote public understanding and dialogue
between technologists and policy-makers in the UK and
Europe. The Board of Trustees and Advisory Council
(http://www.fipr.org/trac.html) comprise some of the leading
experts in the UK.

2. FIPR was the first to draw attention to human rights
problems in the Draft E-Comms Bill with its press release on
the day of publication (23/7/99
http://www.fipr.org/ecommpr.html)

3. FIPR and JUSTICE substantiated these concerns in
October with a Human Rights Audit of the Bill, conducted by
former law-commissioner Prof.Jack Beatson QC
(http://www.fipr.org/ecomm99/pr.html)

4. The Home Office denied Human Rights contravention in a
press statement of 25th October 1999 (appended below)

-- Caspar Bowden http://www.fipr.org Director, Foundation for
Information Policy Research Tel: +44(0)171 354 2333 Fax:
+44(0)171 827 6534

=============== BACKGROUND NOTE

REGULATION OF INVESTIGATORY POWERS BILL

"A Bill will be introduced to ensure that the interception of
communications, and the use or other intrusive techniques,
continues to be regulated for the protection both of the rights
of Individuals and of society as a whole."

The Regulation of Investigatory Powers Bill would:

. update the law on the interception of communications;

. strengthen the regulation of covert surveillance and other
intrusive investigative techniques used by public authorities to
meet the requirements of European Convention on Human
Rights (ECHR) ;

. provide for lawful access to the means necessary to make
encrypted data intelligible.

The Bill would put into effect the proposals in the consultation
paper 'Interception of Communications in the United Kingdom'
(CM4368). This was published on 22 June 1999.

The Bill would continue strictly to limit the occasions on
which communications can be intercepted. And it would
ensure that the same restrictions applied to all
communications. A change in the law is necessary due to
the diversification of communications technologies since the
introduction of the Interception of Communications Act 1985.

The Bill would also strengthen the regulation covert
surveillance and other intrusive investigative techniques used
by public authorities. This would extend regulation to cover
surveillance (not currently regulated by Part III of the Police
Act 1997) and the use of covert human sources, including the
use of agents, informants and undercover officers.

The final part of the Bill would provide for lawful access to
encrypted data. This would put into effect Part III of the draft
Electronic Communications Bill which was published on 23
July 1999 (CM4417). Where, for example, law enforcement
has lawfully acquired encrypted material, the Bill would give
them specific powers to enable them to make that data
intelligible.

All three elements of the Bill would regulate techniques which
are necessary for the protection of society at large but which
can impact on the privacy of specific individuals. The Bill
would strike a balance between these aims in accordance
with our obligations under the European Convention on
Human Rights.

Press Office. Home Office Tel: 0171 2734610

17 November 1999

============================================
=====
============================================
===== Home Office Comment on FIPR/Justice Press
Release (http://www.fipr.org/ecomm99/pr.html)

25th Oct 1999

Government believes the Bill as drafted is compatible with ECHR and Stephen Byers published a statement to that effect when the draft Bill was published.

Accusation - self incrimination

The police can already get access to the information (eg via a search warrant or interception warrant) all we are doing is giving them the power to read it. The proposals do not give law enforcement agencies new powers t
o obtain evidential material.

Search warrants are not hindered by the fact that a door happens to be locked. In essence, we are simply providing powers to the police to deal with a new type of, unbreakable, lock.

We do not believe this is in breach of article 6 of ECHR, which includes a privilege against self-incrimination. The rule against self-incrimination is designed to stop forced confessions which can be unreliable. There
is no question of exacting false information on a 'key'. It either works or it doesn't.

The extraction of the key itself is not incriminating.

What about police powers to take DNA/fingerprints without consent. If this is not self- incriminating then why is it not reasonable to demand that they produce a password.

Accusation - inadequate safeguards against abuse.

We do not believe this is in breach of article 8 of ECHR. This article says expressly that "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the la
w and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, o
r for the protection of the rights and freedoms of others."

The Bill proposes an independent Commissioner to oversee the use of the Secretary of State's powers to authorise the issuing of written notices and a Tribunal to hear complaints. For other written notices, an individual w
ould be able to initiate proceedings under s7 Human Rights Act if he thought Convention Rights had been violated

Accusation - reversal of the burden of proof

The Bill does not reverse the onus of proof. The point is that
it will still be for the authorities to prove that an offence has
been committed for a prosecution to get off the ground. The
Bill actually proposes specific defences


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edited by
published on: 1999-11-18
comments to office@quintessenz.at
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