HUMAN RIGHTS CHALLENGE TO RIPA?

Outlaw.com has a mildly speculative piece about the possibility that the recently introduced provision (under the Regulation of Investigatory Powers Act) to force the handover of encryption keys could be challenged under the Human Rights Act.

Insofar as this is accurate, it is both very welcome and potentially very far-reaching. It infers that, intriguingly, a whole raft of anti-privacy-related legislation (varying from the security regimes at airports, through ContactPoint, all the way up to ID cards) could be subject to the same sort of risk. Indeed, if any such action were ever to be tested in the Courts, it could even have ramifications for the current inadequacies of the requirement of Ministers to make Section 19 declarations under the terms of the Human Rights Act on the face of all Bills presented to Parliament.

However, as the piece makes plain, the current law has been drafted so that, in essence, the State can both 'have its cake and eat it'. As it points out the difficulty is that the 'European' equivalent to a 5th amendment right is not absolute but will rely upon the interpretation of the courts in the circumstances of the case - an elegant solution for the State but, I venture to suggest, not one that works particularly well in the interests of the citizen.

Nevertheless the article does raise two specific issues in my mind. First there is the issue as to whether the appropriate safeguards - level of authorisation, &c - are sufficiently well-defined in statute and are adequately transparent and accountable. I question that. Second, as William Malcolm observes in the article: "The whole purpose of the Regulation of Investigatory Powers framework is to place on a statutory footing, on a transparent footing, the way in which law enforcement agencies and national security agencies access these materials". In other words, its purpose is to deliver legal certainty. But, on the basis that the current policy may be challengeable in the courts and that the outcome of any such challenge would be dependent upon how the relevant court interpreted the circumstances of the case and theavailable evidence, that certainty simply does not exist.

Not for the first time, the policy-makers and legislators seem to have managed to make a pig's ear out of a silk purse!!! Still, we shall see.

UK = "ENDEMIC SURVEILLANCE SOCIETY"

I'm sure you will have noted that Privacy International published their "2007 International Privacy Ranking" a few weeks ago. Indeed there was some comment on the Report at the time (for example here from The Register and here from Spyblog) - and to this extent I concede that this is something of a 'catch-up' post. We can make of the Report's findings what we will. But the criteria that PI have deployed to make their assessments are appropriately objective. And on that basis it makes for decidedly uncomfortable reading.

Two things in particular strike me about the Report. First the trend in both the UK and the USA is undeniably towards ever greater erosion of our privacy rights. In other words the position defined by the Report is no blip on the radar. Rather, however well-intentioned some of the imperatives that underpin it may be (improvements to public services, prevention/detection of fraud, or what-have-you), it is an entrenched and relentless policy direction.

Second - and much more importantly - the right to privacy (and the attendant provision of adequate safeguards against the intrusion of the State into our daily lives) is a fundamental building block of a free society. Therefore, as sure as eggs is eggs, its emasculation makes us less free. If we stop to think about the somewhat woolly concept of 'The War on Terror', we can adopt a simplictic view that it is being 'fought' - I use the word advisedly - to protect our essential freedoms from the encroachment of the fundamentalist - perhaps even barbaric - ideology of the terrorist cause. The irony is that the assault on our privacy rights is justified in no small part on the basis of it being necessary in the interests of national security and to protect us from terrorist-inspired outrages. Accordingly I hope I'm not alone in supposing that it is perverse - some might even say asinine - to abate quintessential democratic freedoms (that of privacy in all its guises in particular) as a conscious and deliberate policy imperative when, to all intents and purposes, the declared aim is to defend them.

Now it may be that, at least superficially, privacy is less valued in societal terms than once it was. Innovations such as Facebook, MySpace, (perhaps even blogging) and others of this ilk are illustrative of how easily the (as it were) security of our privacy can be fragmented as a function and/or consequence of our interaction with the Internet and the Web. For my part I suspect that the vast majority of users of such sites are blissfully unaware of the way(s) in which their adherence to them either can or does undermine their privacy rights. In effect it is, in the main, an unintended - and, if considered properly and on the basis of full understanding, unwanted - consequence of 'buying into'/keeping pace with the latest technological advances. In other words it isn't so much that privacy is valued less; rather, in the context of how the Web works, it is less understood and/or misunderstood. What matters here is that the societal changes wrought by the Web/Internet make it more, not less, important that the right to privacy should be defended.

The upshot is that the policy direction here as espoused by our lords and masters (in both the UK and US) is completely and utterly wrong. It is absolute garbage. Methinks, time for a change (not least of direction)!