July 13, 2012
July 13, 2012
> He returned to Paddington Green station as appointed on 2 December, and was re-arrested for carrying a pocket knife.
FTR, carrying a pocket knife is perfectly legal in the UK (assuming it was within a certain size).
> Officers bearing sub-machine guns broke down the door of JFL's flat. He rang local police before realising CTC had come for him. [...] JFL maintained his silence throughout the one hour time limit imposed by the notice. He was charged with ten offences under section 53 of RIPA Part III, reflecting the multiple passphrases needed to decrypt his various implementations of PGP Whole Disk Encryption and PGP containers. [...] In his final police interview, CTC officers suggested JFL's refusal to decrypt the files or give them his keys would lead to suspicion he was a terrorist or paedophile.
And my favourite paragraph:
> "There could be child pornography, there could be bomb-making recipes," said one detective. "Unless you tell us we're never gonna know... What is anybody gonna think?" JFL says he maintained his silence because of "the principle - as simple as that".
So he was jailed for remaining silent.
There is no '5th Amendment' in the UK, no right of silence and no Miranda rights. There never have been. We do have our own limitations on the rights of police officers conducting an investigation though. If officers have the proper warrants, I think it's reasonable that they are entitled to access to computer records in much the same way they are entitled to access to any other part of someone's property, business and private records.
He was willfully obstructive and obtuse, and suffered the consequences for it, but no more than that. The sectioning is of course a matter for concern, but it requires proper medical oversight and bearing in mind his previous history of mental illness there's no particular reason to believe it was malicious.
However, specific inferences can be drawn from your silence in some circumstances. For example not mentioning something in you statement to police that you later rely on for your defence in court can be taken into account.
So we don't have an absolute right to remain silent, and doing so under suspicious circumstances can get you in trouble, but you can't be prosecuted just for not making a statement.
The UK consists of England, Wales, Scotland and Northern Ireland. 3 different legal systems (though England and Wales and Northern Ireland are similar).
Scotland is radically different with many things being criminal offences in Scotland but are perfectly legal in the other 3 countries, e.g. certain types of violent pornography are serious jail time in Scotland but legal elsewhere in the UK. Plus the knife thing, obviously. Children of 8 years are criminally responsible [i.e. /are/ prosecuted] in Scotland but it is older elsewhere in the UK.
> It is illegal to [...] carry a knife in public without good reason - unless it’s a knife with a folding blade 3 inches long (7.62 cm) or less, eg a Swiss Army knife.
(it doesn't mean what you're saying is untrue!)
Refusing to provide encryption keys is the same thing. There might be illegal data, there might not be. It's the duty of the police to prove it, not the accused.
Innocent until proven guilty? Not in the UK.
from http://en.wikipedia.org/wiki/Right_to_silence_in_England_and... (and cite-note 15)
The case concerns a claim that it was injust to make inferences as to the guilt of the appellant based on their choice to remain silent before the police and court. This appeal under Art.6 ECHR failed (though a claim of preventing access to an attorney succeeded). The court finding that there was no undue inference made, that any inferences as to guilt that had arisen out of the defendants failure to break silence were allowable.
I'm not sure this really helps so much as it seems as it appears to allow the [partial] curtailment of presumption of innocence.
Of course we don't (completely) trust trust the judicial system. That's the point of half the Bill of Rights, for one.
In the US courts are split on the issue. Some say giving an encryption key is testifying, an act of the mind, and you can't force someone to testify against themselves under the 5th. Others say its like handing over a regular key, which you can be forced to do, because the 5th covers testimony, not everything incriminating. It was intended to prevent forced confessions.
Once you're in front of a court you don't get to keep secrets, with the exception of some narrow protections. This has always been the case in the Anglo-American system.
You are not necessarily obligated to testify to that fact for the police, and unless they can demonstrate that the drive belonged to you (or you had access) through some other means, the production of an encryption key is tantamount to forcing that confession.
It's much like if there were a lock on a gun they found on the street: if they can't link the gun to you already, they can't demand you turn over the combination for the lock, because knowing such a combination would be a tacit admission to knowing about the gun.
I was drawing the distinction between that type, which are simply archaic, and this type, which have been designed to incriminate everyone.
It was to do with encrypting random data for physics or a game or something and the government got hold of it but because the data was encrypted one way he couldn't give them a key and he was going to go to prison for two years.
I've heard nothing about it since though with all this PRISM stuff and people encrypting their emails I'm surprised it hasn't resurfaced sooner.