Lauri Love and the potential civil law “backdoor” for obtaining encryption keys

10th May 2016

This is an “explainer” post about a potentially significant court decision being handed down today on whether the UK State can use civil law as a legal “backdoor” for obtaining encryption keys.

The case:  Lauri Love v National Crime Agency

The venue: Westminster Magistrates’ Court, from 1000 hrs today

The claim: An application under section 1 of the Police (Property) Act 1897 for recovery of computer equipment seized by the National Crime Agency – note this is an example of a civil matter being dealt with by a Magistrates’ Court.

The procedural stage: The application is still pre-trial, and the overall application is set down for a trial hearing on 28 July 2016.

Today’s decision: Today the presiding judge District Judge Tempia will make a decision on whether Lauri Love be “directed” at this stage to provide an encryption key as part of the civil claim, and before the trial.

This is because the National Crime Agency, the “defendant” in this claim, is insisting that the key be handed over before the application be tried and a decision made to return the equipment.

Why this matters: The statutory regime for requests for encryption keys (and encrypted data) is under Part III of the Regulation of Investigatory Powers Act 2000 (RIPA).

The state agency – in this case the National Crime Agency – would serve a “section 49” notice, and if a valid section 49 notice is not complied with, then the recipient of the notice can face prosecution under section 53.

The recipient, however, has the protections of the safeguards of section 55 and the protections of the detailed (fifty-odd page) Code of Practice.

By requesting a direction as part of the civil application, the National Crime Agency is seeking to sidestep the RIPA scheme and effectively circumvent the section 55 safeguards and the protections of the Code of Practice.

The extradition context: Lauri Love is facing extradition to the United States.  The United States indictments are at Lauri Love’s website.  The extradition application is also being heard by Westminster Magistrates’ Court, but those are separate and distinct legal proceedings.

This civil claim is self-contained and is not directly relevant to the extradition.

The earlier section 49 notice: Lauri Love has also been already served with a section 49 notice, in February 2014, and did not provide the requested information.   The National Crime Agency did not continue with the RIPA process.

Comment:

Many of the coercive and intrusive powers given to the state under RIPA are balanced by safeguards and protections against abuse of those powers.

The powers and the checks on them should be seen as a package.

By seeking to use directions in a civil claim to achieve the same aim, where the safeguards and protections against abuse will not apply (and which would be decided on a lower standard of proof – section 53 has the criminal standard, whilst a direction in a civil case would (of course) have the civil standard) then the National Crime Agency are departing from what RIPA intended.

If the National Crime Agency want the encryption key then they should follow the RIPA statutory scheme and not try to get round it.

Instead, the National Crime Agency are asking the courts to construct an civil law “backdoor” for obtaining encryption keys (and encrypted data) outside the statutory scheme of RIPA.

Further reading:

The Intercept

The Register

BBC

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FT post on Theresa May, Hillsborough, human rights law and the politics of superficiality

27th April 2016

I have a new post at the Financial Times on how the superficial politics of Theresa May – especially her statements about human rights law – do not match with things such as the new Hillsborough Inquest.

In brief: the new Hillsborough Inquest could not have ranged as widely without Article 2 of the ECHR having effect in domestic law – the same ECHR which May wants the UK to leave.

A couple of excerpts are below:

MayHumanRights

MayHumanRights2

The post was received well on Twitter.

Lawyer and Rugby legend Brian Moore:

The UK’s leading legal commentator Joshua Rozenberg:

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016

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Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.

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According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.

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The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.

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Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.

“Nothing.”

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With apologies to Samuel Beckett.

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British Bill of Rights: Today at the Ministry of Justice

15th February 2016

There is speculation that the long-awaited proposals for a British Bill of Rights will be published this week.

Let’s see what is happening today at the Ministry of Justice:

“Welcome everyone, please sit so you can see this whiteboard.  I am allocating you one right each. We will get the Bill of Rights proposal done today.”

Silence.

“If we do the rights before lunch, that means we have all afternoon to do all the exceptions. Let’s get going.  We will brainstorm and workshop this.”

“Brainstorm and workshop are not verbs.”

“Sorry, Lord Chancellor.”

The brainstorm and workshop begins.

“Right to life…hmmm”

“Privacy, what do we mean by “privacy”?”

“Freedom of…what?”

“Errrrrr, fair trials means…”

It is not going well.

“Come on, it cannot be that difficult to draft a “Bill of Rights”. We have been promising it since 2006.”

The whiteboard remains blank.

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Law and policy round-up: British Bill of Rights, Assange.

8th February 2016

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Here are some interesting links on recent news involving law and policy.

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“British Bill of Rights”

Last week the Lord Chancellor and Justice Secretary Michael Gove appeared before a House of Lords committee to discuss the government’s proposals for repeal of the Human Rights Act and a “British Bill of Rights”.

It soon became clear that the government still has no clear idea what to do.  The “British Bill of Rights” continues to be a grand title on an otherwise blank piece of paper on a desk somewhere in the Ministry of Justice.  The “seven hurdles” for repeal of the Human Rights Act which I posited last May still stand and have not been overcome.

You can watch the appearance here and the transcript of the hearing is here.

A great report of the hearing is by my FT colleague Kate Allen and RightsInfo has a useful analysis.

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Assange

A rather strange and unconvincing “opinion” about arbitrary detention and Julian Assange was released last week by a UN working group.

You can read the report here, though the eight paragraph dissent at the end says all that should be said.

On this report, the best commentary so far has been by Joshua Rozenberg at the Guardian and Carl Gardner at Head of Legal.

My own short “explainer” piece is at the end of this FT news report.

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FT post on Home Office, Saudi Arabia and the need for a ‘safe space’

13th January 2016

My latest FT post is now up, on the the Home Office using the jargon of “safe spaces” so as to avoid disclosing the nature of its relationship with the Saudi internal ministry.

FTHO story

SafeSpace

And this glorious comment:

CommentoftheDay

You can read the full post here.

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Two questions about “something must be done” following the Paris attacks

17th November 2015

In the aftermath of the Paris atrocities there are demands for action: dropping bombs and air-strikes, shoot-to-kill policies, more use of special interrogation techniques (ie, torture), less freedom of movement, more intrusion and less privacy, more powers for the security services, and so on.

What seems to be a feature of many of these demands is that there is no attempt to explain the supposed cause-and-effect. It is almost as if the merit of the proposals is self-evident, a sign of virility: something bad has happened, and so something must be done in return.

But each such demand raises two issues: one of practicality, and one of principle. That is: would the proposal actually help, and does the proposal conflict with the supposed principles, and way of life, we are presumably seeking to defend.

In terms of practice: just doing “something” does not mean you are doing the right thing.  It may make no difference, or it may make things worse.  In terms of dealing with terrorism, one false move can cause problems for a generation.  The history of dealing with the terrorist problems in Northern Ireland is packed with examples of things being “done” which just caused greater difficulties later on.

This is not to suggest doing nothing; just that what needs to be done needs to be thought-through.

So: will what is being called for actually work and, if so, how?

In terms of principle: there appears to be a genuine risk that we could end up undermining – even subverting – the very principles of personal autonomy, the rule of law and freedom of expression which the West can and should be defending and asserting.

These liberal principles are not absolute, and they can be interfered with for reasons of the greater good; but they should not be discarded casually either. The point is whether any serious thought is being put into the required balancing exercise.

So: how will what is being called for interfere with the fundamental values of civilization we are seeking to protect and, if so, has the right balance really been struck?

It sometimes seems that some of those wanting to drop bombs and order air-strikes, to deploy shoot-to-kill policies and to use more torture, to limit freedom of movement, and to intrude more and to give more powers for the security services, do not need a reason for their demands, and still less do they require any evidence as to the efficacy of what they propose; they just want a pretext.

Asking about whether a proposed action is really practical, and about whether a proposed action needlessly interferes with civilized values, is not a check to things being “done”.  It is not an excuse for doing nothing.

Answering such questions instead will tend to mean that the right things are done:  things that work, and things which mean liberal values are being taken seriously.

In essence: “something can be done” is always better than “something must be done”.

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The thinly veiled threats of the Saudi Ambassador

27th October 2015

When a genuinely extraordinary political decision is taken the consequences can often be telling.

Such decisions are not those usual ones that are predetermined or stage-managed, as are the stuff of any political system under the public gaze.  They are instead the decisions that suddenly disturb and disrupt the settled practices of those with power; they are decisions the effects of which are often worth watching carefully.

Earlier this month, the UK prime minister David Cameron ordered that the Ministry of Justice should pull out of a bid to provide training services to the prisons of Saudi Arabia.

The exact basis of that decision is not yet clear.

But it was not one which the Saudis and their allies in the UK Foreign and Commonwealth Office (FCO) were expecting the UK government to make; indeed, the FCO had until then managed to oblige the MoJ to continue with the bid even though the Justice Secretary, Michael Gove, was against it.

The Saudis are not happy with this decision, or about its significance.

The contract proposal itself was not big in the global scheme of things — just under £6m; it was more that the usual tactic of Saudis threatening to not “co-operate” unless they got their way did not work for once. It seemed as if a bluff was being called. The FCO had not wanted to upset the Saudis, but this supposed “wider” interest of the government was trumped by the prime minister effecting a quick fix to a cabinet split that was about to be exploited by the media and the opposition.

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The Saudis have now reacted publicly.

In Monday’s Daily Telegraph is a remarkable article from the Saudi ambassador in London, Mohammed bin Nawaf bin Abdulaziz. The ambassador’s piece is worrying — and revealing.

The article warns of the adverse consequences of the UK treating the Saudis with disrespect.

But it does so in a clumsy and discreditably strident manner.

The ambassador’s overall tone is evocative of some international protection racketeer telling the UK what a nice little country we have here, and wouldn’t it be a shame if “co-operation” ended.

One wonders if anyone at the Saudi embassy in London had the wit or sense to tell the ambassador to desist from publishing such a blatant exercise in implicit intimidation. Perhaps somebody did, and the first draft was even worse. Who knows. What is clear, however, is that Saudis do not react well to being told that they are not going to get their way.

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The ambassador’s article bears close attention, both for what it says and what it does not say.

For example, there are general threats with only the thinnest of veils:

“…an alarming change…potentially serious repercussions that could damage the mutually beneficial strategic partnership…a strong alliance [which up] until a few weeks ago, I would have said it had never been stronger”.

Then the threats become more specific. First, in respect of commercial matters:

“The Kingdom’s contribution to Britain’s security and economy provides the foundations on which the bilateral relations between our two countries are built, allowing trade, cultural exchanges and military cooperation to flourish. Saudi Arabia ultimately provides over 50,000 British families in the UK and the Kingdom with livelihoods, thanks to commercial contracts worth tens of billions of pounds. Saudis also have an estimated £90 billion in private business investments in the UK.

[…]
If the extensive trade links between the two countries are going to be subordinate to certain political ideologies, then this vital commercial exchange is going to be at risk.”

(On this point, also see the FT’s news report yesterday of the threat to the Typhoon contract.)

And then in terms of British lives and limbs:

“…the Kingdom remains an invaluable source of intelligence on the activities of terrorist groups. Information from Saudi intelligence in 2010 resulted in a major counter-terrorism success by scuttling an al-Qaeda attempt to blow up a cargo airliner over Britain. In a recent interview, David Cameron confirmed the importance of our contribution when he declared: “Since I have been Prime Minister a piece of information that we have been given by (Saudi Arabia) has saved potentially hundreds of lives here in Britain.” Given information to which I am privy, that number is, in fact, in the thousands.”

The message is plain: the UK had better be careful.

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Here it is important to remember what the prime minister’s decision was about.

It was a decision that a relatively small UK government department should not bid for overseas work but should instead concentrate on domestic matters.

It is the sort of issue that any sovereign government should be able to make in respect of its own public services.

But the ambassador has such a distorted a view of national sovereignty that he misses the irony of him complaining that the UK does not respect Saudi Arabia as a sovereign state while saying that it was not open to the MoJ to drop a bid so that it concentrate on domestic activities in England and Wales.

The ambassador’s express criticism of the political approach of the UK’s new leader of the opposition also looks at odds with the insistence that the UK should not interfere with the internal affairs of another country.

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The ambassador’s article is telling in other ways.

The propensity of the Saudis to use barbaric physical punishments is blithely passed off as a local tradition and custom, as if tying someone to a pole and flogging them nearly to death is somehow comparable to having a pole on a village green for dancing around on May mornings.

The ambassador also appears not even to be properly informed as to the matter in hand. He states that the UK prison cancelled a consultancy contract with Saudi Arabia worth £5.9m. In fact, the contract was not yet in place. It had not been signed because the Saudis had not yet awarded the contract to the UK – even though the final bid had been in April and the Saudis had still not made their decision by October (the intention was that the contract was to have been awarded by July).

What was cancelled was not a contract, but a contract bid. But such details do not matter to the ambassador, even though he is mounting threats on the back of what he says has happened.

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Ever since the Saudis pressed the UK in 2006 to drop the fraud investigation of BAe (read the first 22 paragraphs of the House of Lords’ 2008 Corner House decision for a chilling account of this dreadful incident) it has been obvious to anyone who wants to see what the influence of the Saudis is over the UK state by holding the twin swords of commerce and intelligence close to our necks.

So used are the Saudis in routinely threatening that “co-operation” will be at risk that various UK bodies not directly connected with foreign affairs – the Home Office, the MoJ, the College of Policing, and even the Information Commissioner (as I set out in a post earlier this month) – are all too scared even to reveal minor details of the relationships, lest the Saudis retaliate.

Against this backdrop, the decision of the Prime Minister earlier this month has caused a jolt in UK-Saudi relations. It may well be that something substantial has changed; or it may be that the old practices will resume.

But what is new is that Saudi diplomats have now taken to the pages of the British press to display their displeasure, and to make explicit in the media what they want the UK to believe is at stake. To do this, however, does not indicate Saudi strength but insecurity; it means what was said behind closed doors is no longer sufficient.

The blustering and bullying is now in the public square, and this cannot be undone; everyone can see the Saudis for what they are.

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FT post on why the reference to ‘international law’ in the UK’s Ministerial Code matters

26th October 2015

Following on from the story that was broken by my friend Nick Cohen on the deletion of regard to “international law” from the Ministerial Code, and also in response to the extraordinary public intervention from the former Treasury Solicitor, I have done a brief post over at the FT.

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