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.
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.
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.
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