Comment by SEMW | Hacker News Reader

Comment by SEMW | Hacker News Reader

While it is obviously a bad law, it's not quite as bad as he's making out.

s.53(3):

"For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if—

(a) sufficient evidence of that fact is adduced to raise an issue with respect to it; and

(b) the contrary is not proved beyond a reasonable doubt."

In other words, if there's evidence for there to be 'an issue' about whether you actually do have a key (or whether e.g. it's just random noise), it's up to the prosecution to prove beyond reasonable doubt that it is actually data, and you do have the key.

So the flowchart is:

- If the police can prove they have reasonable grounds to believe that something is encrypted data that you have the key to, then

- That raises an evidential presumption that you do have it, which you can rebut by

- adducing evidence that just has to raise an issue about whether you have a key (inc. whether it's encrypted data at all), in which case the police have to

- Prove beyond reasonable doubt that it is encrypted, and you do have the key.

(IANAL)

This would still concern me. It isn't hard to imagine the police assuming any file they don't understand is that way because it is encrypted and, being that they are police and not scientists or engineers, that number could be quite high.

So now, you may actually know what's in that file. Great, no problems (other than the headache of dealing with explaining files in the first place).

The real danger is what if you don't know about the file, either? "I have no clue" is not going to cause reasonable doubt. The problem here is the law starts from a presumed guilt, which is problematic if you are, in fact, innocent.

But it really does come down to how the first clause of the law gets interpreted. Is it reasonably interpreted or not? I have lost faith in any chance of governments sticking to reasonableness when it comes to their threat of terrorism, protecting their "children", etc.

> It isn't hard to imagine the police assuming any file they don't understand is that way because it is encrypted

True, but they have to prove they have reasonable grounds for believing, not just that it's encrypted, but also that you have the key to it.

> "I have no clue" is not going to cause reasonable doubt

It doesn't need to cause reasonable doubt, it just has to raise an issue about whether or not you have they key. In which case the police have to prove you do beyond reasonable doubt.

But you are right - it is ambiguous, and that evidential presumption is in danger of being interpreted in a very anti-defendant way.

But:

> I have lost faith in any chance of governments sticking to reasonableness

Thankfully, it's not up to the government to interpret legislation, it's up to the courts. And they have to interpret criminal legislation (a) in favour of the defendant (common law principle), and (b) compatibly with the human rights act.

That second one is powerful, and has resulted in anti-defendant statues being interpreted almost out of all recognition by a court happy to interpret stuff compatibly with the HRA right to a fair trial. See e.g. http://www.guardian.co.uk/uk/2001/may/18/lords.politics .

But, as mentioned in the above comment, you can't "prove" that something is an encrypted data unless you already have a valid key. And if police only required to "guess" that something is an encrypted data than Falkvinge logic applies - law will be abused (at least unintentionally).

Reply on news.ycombinator.com