Monday, October 13, 2008


  The Court of Appeal has ruled that someone refusing to hand over 
decryption keys, having been served with a s49 Regulation of Investigatory 
Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53), 
notwithstanding the protections which exist in the UK against self 
incrimination.

  Caspar Bowden and FIPR repeatedly warned that this would be the case when 
RIPA was being considered by parliament but I think this is the first case 
where a definitive Appeal Court ruling has been made, (appealing the 
decision of Judge Martin Stephens QC at the Central Criminal Court in June 
this year). The ruling, made by Mr Justice Penry-Davey and Mr Justice Simon, 
is available in full at BAILII and the case is S & Anor, R. v [2008] EWCA 
Crim 2177 (09 October 2008). The whole thing hinges on the right to avoid 
self incrimination not being an absolute right - a number of exceptions are 
quoted in the decision - and the appellants being terrorist suspects, whose 
application to avoid handing over the decryption keys, according to the 
judges, proceeded on the assumption that what would be uncovered in the 
decryption would indeed be incriminating evidence. In addition there was no 
question of the keys being extracted by torture ("inhuman or degrading 
treatment") which would 'give rise to the exercise of the court's 
jurisdiction, under section 78 of the Police and Criminal Evidence Act 1984, 
to refuse to allow evidence to be given by the prosecution when the 
circumstances in which it was obtained undermined the fairness of the 
proceedings.'

  The decision is quite short and accessible. The key parts being:

  "2. During 2007 H was made the subject of a control order under the 
Prevention of Terrorism Act 2005. The order obliged him to live and remain 
in Leicestershire, and not to leave his home address without the consent of 
the Secretary of State for the Home Department. The present appellants are 
alleged to have conspired together, and with H and others, to breach that 
order. The objective of the conspiracy was to assist H to abscond from his 
address in Leicester and to convey him to a new, secret address in 
Sheffield. On 9 September 2007 S collected H and drove him there. Shortly 
after their arrival in Sheffield the police entered the premises.

  3. H was found in one room, and S in another. S was alone in the same room 
as a computer. The key to an encrypted file appeared to have been partially 
entered. He was arrested, and when interviewed, made no comment. In the 
meantime his home address in London was searched. The search revealed 
computer material. Various documents had been deleted from the computer hard 
drives, but when retrieved, they provided the basis for charges against S 
under section 58 of the Terrorism Act 2000, that is, possessing documents or 
records of information of kind likely to be useful to a terrorist or 
potential terrorist. However without the encryption keys for the encrypted 
files present on the computer hard drives, and indeed the full key for 
encrypted file on the laptop on which the encryption key appeared to have 
been already partially entered in Sheffield, the encrypted files could not 
be accessed and their contents examined.

  4. A was also arrested on 9 September. Computer material was later seized 
from his address by the police. One of the discs seized has an encrypted 
area. Without the encryption key access cannot be gained to it.

  5. Both appellants were charged on 10th September 2007 with conspiracy to 
breach the control order imposed on H In December 2007 S was arrested while 
in custody, and following an interview in which he declined to answer any 
questions, he was charged with offences under section 58 of the 2000 Act. 
While subject to these charges, on 16 January 2008, S was served with two 
notices under section 53 of RIPA, and a similar notice was served on A on 15 
March 2008.

  6. The first notice served on S immediately identified the purpose, the 
"investigation of protected electronic information", and after explaining 
that the notice imposed a legal obligation, failure to comply with which was 
an offence, it continued:

  "Disclosure requirement

  . I hereby require you to disclose a key or any supporting information to 
make information intelligible

  the information to which this notice relates is:

  the full encryption key in order to access the encrypted volume of the 
laptop computer that is exhibited as exhibit AM/1 under file path: 
C:\Documents and Settings\Administrator\My Documents\My Videos, within a 
file called Ronin.wma. This was found in the room where you were arrested at 
386 Abbeydale Road, Sheffield".

  7. The reason for the notice was explained, with particulars given of the 
precise circumstances in which the interests of national security and the 
prevention or detection of crime were said to arise.

  8. The notice then described how

  "disclosure can be verbal or written provided the information is 
sufficient to unlock the encryption, and that the person to whom the notice 
is given may select which of any relevant keys or combination of keys should 
be disclosed provided the information is put into intelligible form."

  The remaining notices were in identical terms, appropriate to the 
electronic information identified in them.

  9. Neither S nor A complied with the notices. Their position was that the 
notices which compelled them to disclose the passwords or "keys" to the 
encrypted computer files were incompatible with the privilege against 
self-incrimination. Their refusal formed the basis of the counts in the 
indictment which Judge Stephens was invited to stay on the basis that "the 
requirement to provide information to the police under Part III of RIPA 
constituted an impermissible infringement of the .privilege against 
self-incrimination" and contravened article 6 of the European Convention of 
Human Rights. In a careful ruling Judge Stephens rejected the applications. 
Applications for leave to appeal against his decision were referred to the 
full court by the Registrar of Criminal Appeals. After full argument leave 
was granted but the appeals dismissed...

  20. On analysis, the key which provides access to protected data, like the 
data itself, exists separately from each appellant's "will". Even if it is 
true that each created his own key, once created, the key to the data, 
remains independent of the appellant's "will" even when it is retained only 
in his memory, at any rate until it is changed. If investigating officers 
were able to identify the key from a different source (say, for example, 
from the records of the shop where the equipment was purchased) no one would 
argue that the key was not distinct from the equipment which was to be 
accessed, and indeed the individual who owned the equipment and knew the key 
to it. Again, if the arresting officers had arrived at the premises in 
Sheffield immediately after S had completed the process of accessing his own 
equipment enabling them to identify the key, the key itself would have been 
a piece of information existing, at this point, independently of S himself 
and would have been immediately available to the police for their use in the 
investigation. In this sense the key to the computer equipment is no 
different to the key to a locked drawer. The contents of the drawer exist 
independently of the suspect: so does the key to it. The contents may or may 
not be incriminating: the key is neutral. In the present cases the 
prosecution is in possession of the drawer: it cannot however gain access to 
the contents. The lock cannot be broken or picked, and the drawer itself 
cannot be damaged without destroying the contents.

  21. As it happens, in the present cases, the only persons who know how to 
access the data to which access is being sought are the appellants 
themselves. Assuming, as for present purposes we have, that the computers 
contain material which may incriminate each appellant, whether by lending 
weight to the Crown's case against them on the remaining counts in the 
indictment, or providing a basis for further criminal charges whether 
contrary to the Terrorism Act or otherwise, disclosure by them of the keys 
would tend to make material available to the prosecution which would 
incriminate them. Non-disclosure would altogether prevent the incriminating 
material from coming to light. In short, the notice issued under section 49 
of RIPA requires the appellants, under threat of criminal proceedings for 
non-compliance, to speak or write or otherwise convey sufficient information 
to the police to enable them to access the contents of their computers. The 
actual answers, that is to say the product of the appellants' minds could 
not, of themselves, be incriminating. The keys themselves simply open the 
locked drawer, revealing its contents. In much the same way that a blood or 
urine sample provided by a car driver is a fact independent of the driver, 
which may or may not reveal that his alcohol level exceeds the permitted 
maximum, whether the appellants' computers contain incriminating material or 
not, the keys to them are and remain an independent fact. If however, as for 
present purposes we are assuming, they contain incriminating material, the 
fact of the appellants' knowledge of the keys may itself become an 
incriminating fact. For example, to know the key to a computer in your 
possession which contains indecent images of children may itself tend to 
support the prosecution case that you were knowingly in possession of such 
material. This was the approach adopted in Re Boucher, a decision of the 
District Court in Vermont [2007] WL 4246473, where the reasoning 
acknowledged that some "acts of production" such as fingerprints, blood 
samples or voice recordings would not attract the privilege against 
self-incrimination.

  22. Mr Ryder highlighted the decision of the Grand Chamber of the Court in 
Jalloh v Germany (2007) 44 EHRR 32 where it was recently asserted that even 
evidence which may properly be described as "independent of the will of the 
suspect" which has been obtained by inhuman or degrading treatment may 
constitute a breach of the entitlement to a fair trial. In this jurisdiction 
such an issue would be likely to give rise to the exercise of the court's 
jurisdiction, under section 78 of the Police and Criminal Evidence Act 1984, 
to refuse to allow evidence to be given by the prosecution when the 
circumstances in which it was obtained undermined the fairness of the 
proceedings. In making such a decision, the court would no doubt attend very 
closely to any circumstances amounting to oppression as defined in section 
76 of the 1984 Act, or inhuman or degrading treatment to which the suspect 
was subjected, and if such circumstances were found, would step in to 
protect the defendant's entitlement to a fair trial. When an examination of 
the jurisprudence of the European Court into the principles relating to 
self-incrimination and the fairness of any subsequent trial is conducted, 
this common law discretionary power, which long pre-dated its incorporation 
into statute, should not be minimised.

  23. Mr Ryder suggested that the protection provided by section 78 did not 
arise at this stage in the argument: it could only arise for consideration 
at trial after the appellant had been forced to incriminate himself. In our 
judgment, however, as Lord Bingham explained in Brown v Stott, the 
jurisprudence of the European Court is directed at the overall fairness of 
the trial and Jalloh should be seen as a decision which maintains the same 
principle. Evidence obtained by ill-treatment of the kind to which Jalloh 
was subjected may, and normally would be excluded. That is precisely why the 
common law rule, now embodied in section 78, exists. In this context, Jalloh 
is no more than an illustration of precisely the same point.

  24. In our judgment the correct analysis is that the privilege against 
self-incrimination may be engaged by a requirement of disclosure of 
knowledge of the means of access to protected data under compulsion of law. 
If Judge Stephens ruling treated this knowledge as identical to the key to 
it, we respectfully disagree. But where, in the end, would this take the 
appellants? It is noteworthy that, although the detailed arguments purported 
to address the means of access to what would otherwise be protected data, 
the reality is that it is the contents of the equipment containing that 
data, lawfully in the possession of the police, which the argument is 
designed to protect from disclosure and possible use in the course of a 
prosecution, rather than the keys to it. In short, although the appellants' 
knowledge of the means of access to the data may engage the privilege 
against self-incrimination, it would only do so if the data itself - which 
undoubtedly exists independently of the will of the appellants and to which 
the privilege against self-incrimination does not apply - contains 
incriminating material. If that data was neutral or innocent, the knowledge 
of the means of access to it would similarly be either neutral or innocent. 
On the other hand, if the material were, as we have assumed, incriminatory, 
it would be open to the trial judge to exclude evidence of the means by 
which the prosecution gained access to it. Accordingly the extent to which 
the privilege against self-incrimination may be engaged is indeed very 
limited.

  25. In these appeals the question which arises, if the privilege is 
engaged at all, is whether the interference with it is proportionate and 
permissible. A number of issues are clear and stark. The material which 
really matters is lawfully in the hands of the police. Without the key it is 
unreadable. That is all. The process of making it readable should not alter 
it other than putting it into an unencrypted and intelligible form that it 
was in prior to encryption; the material in the possession of the police 
will simply be revealed for what it is. To enable the otherwise unreadable 
to be read is a legitimate objective which deals with a recognised problem 
of encryption. The key or password is, as we have explained, a fact. It does 
not constitute an admission of guilt. Only knowledge of it may be 
incriminating. The purpose of the statute is to regulate the use of 
encrypted material, and to impose limitations on the circumstances in which 
it may be used. The requirement for information is based on the interests of 
national security and the prevention and detection of crime, and is 
expressly subject to a proportionality test and judicial oversight. In the 
end the requirement to disclose extends no further than the provision of the 
key or password or access to the information. No further questions arise. 
The notice is in very simple form. Procedural safeguards and limitations on 
the circumstances in which this notice may be served are addressed in a 
comprehensive structure, and in relation to any subsequent trial, the powers 
under section 78 of the 1984 Act to exclude evidence in relation, first, to 
the underlying material, second, the key or means of access to it, and 
third, an individual defendant's knowledge of the key or means of access, 
remain. Neither the process, nor any subsequent trial can realistically be 
stigmatised as unfair.

  26. In these circumstances we can find no basis for interfering with Judge 
Stephens' indication of how he would have exercised his discretion if, 
contrary to his view, an issue of self-incrimination arose. In the 
circumstances of this particular case his conclusion was obviously correct. 
Furthermore, by way of emphasis, we can see no possible ground for a 
successful application that the prosecution under section 53 of RIPA should 
be stopped as an abuse of process.

  27. By way of footnote: if the self-incrimination argument was taken as a 
matter of principle on the basis of legal advice to the appellants, and they 
choose, now, to disclose the relevant key, although long out of time, we 
suspect that the prosecution would be disinclined to proceed with the 
appropriate counts in the indictment, or if they chose to do so, that the 
judge would take a merciful view when addressing sentence, at any rate if 
the protected data turned out to be innocent or simply neutral. "

  There are all kinds of interesting questions triggered by the judgment. I 
wonder, for example, why the court felt the need to mount such a robust 
defence of RIPA itself? (In paragraph 29. they say the act is clear, has all 
kinds of safeguards and was created precisely to deal with the kind of 
circumstances that arose in this case). It will be interesting also to see 
if the appellants now agree to hand over the keys or suffer the 
consequences - up to 5 years in prison.

"Airmax"  wrote in message 
news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
> Monday, October 13, 2008
>
>
>  The Court of Appeal has ruled that someone refusing to hand over 
> decryption keys, having been served with a s49 Regulation of Investigatory 
> Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53), 
> notwithstanding the protections which exist in the UK against self 
> incrimination.
>
Those protections have been erroded ever since the 1988 Road Traffic Act 
that made breath testing obligatory.

"Airmax"  wrote in message 
news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
> Monday, October 13, 2008
>
>
>  The Court of Appeal has ruled that someone refusing to hand over 
> decryption keys, having been served with a s49 Regulation of Investigatory 
> Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53), 
> notwithstanding the protections which exist in the UK against self 
> incrimination.
>

I wonder what happens if one uses a program like TrueCrypt which doesn't 
encrypt a file but a encrypts a "folder" or area on the hard drive along 
with its contents. It allows two passwords for different parts of the 
encrypted area. Thus you put "innocent files in one part and "dangerous" 
ones in the other. There is apparently no way of telling whether the folder 
has been encrypted with two passwords, so under pressure you reveal only one 
of them.
This would give rise to an interesting situation.
It is also, I suspect why encryption is not encouraged (and the government 
looses data) - try to find info on the subject in computer magazines..
If everyone discovered how easy it is to encrypt files, the police would 
have a real problem.
And if anyone asks why an innocent person should wish to encrypt files, I 
encrypt all my financial files, bank statements, etc. I have no wish for 
some computer technician who might be repairing my computer to browse 
through my personal finances.

B.

"Retired"  wrote in message 
news:De2dndOVSqWyK27VnZ2dneKdnZydnZ2d@posted.plusnet...
>
> "Airmax"  wrote in message 
> news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
>> Monday, October 13, 2008
>>
>>
>>  The Court of Appeal has ruled that someone refusing to hand over 
>> decryption keys, having been served with a s49 Regulation of 
>> Investigatory Powers Act (RIPA) notice, can be prosecuted (under RIPA s 
>> 53), notwithstanding the protections which exist in the UK against self 
>> incrimination.
>>
>
> I wonder what happens if one uses a program like TrueCrypt which doesn't 
> encrypt a file but a encrypts a "folder" or area on the hard drive along 
> with its contents. It allows two passwords for different parts of the 
> encrypted area. Thus you put "innocent files in one part and "dangerous" 
> ones in the other. There is apparently no way of telling whether the 
> folder has been encrypted with two passwords, so under pressure you reveal 
> only one of them.
> This would give rise to an interesting situation.
> It is also, I suspect why encryption is not encouraged (and the government 
> looses data) - try to find info on the subject in computer magazines..
> If everyone discovered how easy it is to encrypt files, the police would 
> have a real problem.
> And if anyone asks why an innocent person should wish to encrypt files, I 
> encrypt all my financial files, bank statements, etc. I have no wish for 
> some computer technician who might be repairing my computer to browse 
> through my personal finances.
>
> B.
Would it be a defence to forget the keys?  I often forget my online banking 
passwords and have to have them reset.

"mert1639"  wrote in message 
news:gd0d46$evg$1@frank-exchange-of-views.oucs.ox.ac.uk...
>
> "Retired"  wrote in message 
> news:De2dndOVSqWyK27VnZ2dneKdnZydnZ2d@posted.plusnet...
>>
>> "Airmax"  wrote in message 
>> news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
>>> Monday, October 13, 2008
>>>
>>>
>>>  The Court of Appeal has ruled that someone refusing to hand over 
>>> decryption keys, having been served with a s49 Regulation of 
>>> Investigatory Powers Act (RIPA) notice, can be prosecuted (under RIPA s 
>>> 53), notwithstanding the protections which exist in the UK against self 
>>> incrimination.
>>>
>>
>> I wonder what happens if one uses a program like TrueCrypt which doesn't 
>> encrypt a file but a encrypts a "folder" or area on the hard drive along 
>> with its contents. It allows two passwords for different parts of the 
>> encrypted area. Thus you put "innocent files in one part and "dangerous" 
>> ones in the other. There is apparently no way of telling whether the 
>> folder has been encrypted with two passwords, so under pressure you 
>> reveal only one of them.
>> This would give rise to an interesting situation.
>> It is also, I suspect why encryption is not encouraged (and the 
>> government looses data) - try to find info on the subject in computer 
>> magazines..
>> If everyone discovered how easy it is to encrypt files, the police would 
>> have a real problem.
>> And if anyone asks why an innocent person should wish to encrypt files, I 
>> encrypt all my financial files, bank statements, etc. I have no wish for 
>> some computer technician who might be repairing my computer to browse 
>> through my personal finances.
>>
>> B.
> Would it be a defence to forget the keys?  I often forget my online 
> banking passwords and have to have them reset.
Interesting thought. TrueCrypt suggests that a password (or phrase) of at 
least 20 characters is required for maximum security (to prevent so-called 
brute force attacks).
The TrueCrypt web site makes very interesting reading. And the program is 
free.
B.

> I wonder what happens if one uses a program like TrueCrypt which doesn't
> encrypt a file but a encrypts a "folder" or area on the hard drive along 
> with its contents. It allows two passwords for different parts of the 
> encrypted area. Thus you put "innocent files in one part and "dangerous" 
> ones in the other. There is apparently no way of telling whether the 
> folder has been encrypted with two passwords, so under pressure you reveal 
> only one of them.

that is exactly what i was wondering...
i cannot see there is any possible way to know in these circumstances if a 
second encrypted set of files even exists or not until the second password 
is entered
presumably future versions might allow for unlimited layers of passwords
it seems perfect-
andy

On Mon, 13 Oct 2008 21:57:17 +0100, Retired wrote:

> "Airmax"  wrote in message
> news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
>> Monday, October 13, 2008
>>
>>
>>  The Court of Appeal has ruled that someone refusing to hand over
>> decryption keys, having been served with a s49 Regulation of
>> Investigatory Powers Act (RIPA) notice, can be prosecuted (under RIPA s
>> 53), notwithstanding the protections which exist in the UK against self
>> incrimination.
>>
>>
> I wonder what happens if one uses a program like TrueCrypt which doesn't
> encrypt a file but a encrypts a "folder" or area on the hard drive along
> with its contents. It allows two passwords for different parts of the
> encrypted area. Thus you put "innocent files in one part and "dangerous"
> ones in the other. There is apparently no way of telling whether the
> folder has been encrypted with two passwords, so under pressure you
> reveal only one of them.
> This would give rise to an interesting situation. It is also, I suspect
> why encryption is not encouraged (and the government looses data) - try
> to find info on the subject in computer magazines.. If everyone
> discovered how easy it is to encrypt files, the police would have a real
> problem.
> And if anyone asks why an innocent person should wish to encrypt files,
> I encrypt all my financial files, bank statements, etc. I have no wish
> for some computer technician who might be repairing my computer to
> browse through my personal finances.
> 
> B.

With Truecrypt one can encrypt the whole system with a hidden volume, 
nobody would ever know.

"Phi"  wrote in message 
news:i4edndRTs9hSX27VnZ2dnUVZ8sPinZ2d@bt.com...
> On Mon, 13 Oct 2008 21:57:17 +0100, Retired wrote:
>
>> "Airmax"  wrote in message
>> news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
>>> Monday, October 13, 2008
>>>
>>>
>>>  The Court of Appeal has ruled that someone refusing to hand over
>>> decryption keys, having been served with a s49 Regulation of
>>> Investigatory Powers Act (RIPA) notice, can be prosecuted (under RIPA s
>>> 53), notwithstanding the protections which exist in the UK against self
>>> incrimination.
>>>
>>>
>> I wonder what happens if one uses a program like TrueCrypt which doesn't
>> encrypt a file but a encrypts a "folder" or area on the hard drive along
>> with its contents. It allows two passwords for different parts of the
>> encrypted area. Thus you put "innocent files in one part and "dangerous"
>> ones in the other. There is apparently no way of telling whether the
>> folder has been encrypted with two passwords, so under pressure you
>> reveal only one of them.
>> This would give rise to an interesting situation. It is also, I suspect
>> why encryption is not encouraged (and the government looses data) - try
>> to find info on the subject in computer magazines.. If everyone
>> discovered how easy it is to encrypt files, the police would have a real
>> problem.
>> And if anyone asks why an innocent person should wish to encrypt files,
>> I encrypt all my financial files, bank statements, etc. I have no wish
>> for some computer technician who might be repairing my computer to
>> browse through my personal finances.
>>
>> B.
>
> With Truecrypt one can encrypt the whole system with a hidden volume,
> nobody would ever know.

http://sleepinggirls.co.uk/truecrypt.html

Quel Surprise.

WM
www.critest.com

"Airmax"  wrote in message 
news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
> Monday, October 13, 2008
>
>
>  The Court of Appeal has ruled that someone refusing to hand over 
> decryption keys, having been served with a s49 Regulation of Investigatory 
> Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53), 
> notwithstanding the protections which exist in the UK against self 
> incrimination.
>
>
>  There are all kinds of interesting questions triggered by the judgment. I 
> wonder, for example, why the court felt the need to mount such a robust 
> defence of RIPA itself? (In paragraph 29. they say the act is clear, has 
> all kinds of safeguards and was created precisely to deal with the kind of 
> circumstances that arose in this case). It will be interesting also to see 
> if the appellants now agree to hand over the keys or suffer the 
> consequences - up to 5 years in prison.

The penalty for failing to surrender the key(s) to encrypted files is 2 
years in prison.

"Retired"  wrote in message 
news:De2dndOVSqWyK27VnZ2dneKdnZydnZ2d@posted.plusnet...
>
> "Airmax"  wrote in message 
> news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
>> Monday, October 13, 2008
>>
>>
>>  The Court of Appeal has ruled that someone refusing to hand over 
>> decryption keys, having been served with a s49 Regulation of 
>> Investigatory Powers Act (RIPA) notice, can be prosecuted (under RIPA s 
>> 53), notwithstanding the protections which exist in the UK against self 
>> incrimination.
>>
>
> I wonder what happens if one uses a program like TrueCrypt which doesn't 
> encrypt a file but a encrypts a "folder" or area on the hard drive along 
> with its contents. It allows two passwords for different parts of the 
> encrypted area. Thus you put "innocent files in one part and "dangerous" 
> ones in the other. There is apparently no way of telling whether the 
> folder has been encrypted with two passwords, so under pressure you reveal 
> only one of them.
> This would give rise to an interesting situation.
> It is also, I suspect why encryption is not encouraged (and the government 
> looses data) - try to find info on the subject in computer magazines..
> If everyone discovered how easy it is to encrypt files, the police would 
> have a real problem.
> And if anyone asks why an innocent person should wish to encrypt files, I 
> encrypt all my financial files, bank statements, etc. I have no wish for 
> some computer technician who might be repairing my computer to browse 
> through my personal finances.
>

This has been discussed at length previously.  To make a charge of failing 
to reveal the key for the hidden volume, it is first necessary to prove that 
the hidden volume exists.  The modus operandi of Truecrypt is such that this 
is impossible without either the key itself or breaking the encryption (so 
far it hasn't).

A alternative plan is to hide your material on a micro SD card.  Being 
around 10mm square and less than 0.5mm thick, hiding one some or many should 
not be too taxing a challenge.  Of course, the possession of a micro SD 
reader might be regarded as a bit of a give away - unless you have a few 
cards lying around with nothing incriminating on.

On Mon, 13 Oct 2008 22:03:58 +0100, "mert1639"
 wrote:

>Would it be a defence to forget the keys?  I often forget my online banking 
>passwords and have to have them reset. 

I would suggest that such a defence is like pleading ignorance of the
law, which is no defence.

MM

On Tue, 14 Oct 2008 09:28:22 +0100, "M.I.5¾"
 wrote:

>
>"Airmax"  wrote in message 
>news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...
>> Monday, October 13, 2008
>>
>>
>>  The Court of Appeal has ruled that someone refusing to hand over 
>> decryption keys, having been served with a s49 Regulation of Investigatory 
>> Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53), 
>> notwithstanding the protections which exist in the UK against self 
>> incrimination.
>>
>>
>>  There are all kinds of interesting questions triggered by the judgment. I 
>> wonder, for example, why the court felt the need to mount such a robust 
>> defence of RIPA itself? (In paragraph 29. they say the act is clear, has 
>> all kinds of safeguards and was created precisely to deal with the kind of 
>> circumstances that arose in this case). It will be interesting also to see 
>> if the appellants now agree to hand over the keys or suffer the 
>> consequences - up to 5 years in prison.
>
>The penalty for failing to surrender the key(s) to encrypted files is 2 
>years in prison.

And is one then set free? Or persecuted further?

MM

On 14 Oct, 10:29, MM  wrote:
> On Mon, 13 Oct 2008 22:03:58 퍝, "mert1639"
>
>  wrote:
> >Would it be a defence to forget the keys?  I often forget my online banking
> >passwords and have to have them reset.
>
> I would suggest that such a defence is like pleading ignorance of the
> law, which is no defence.

IANAL, but I recall in previous discussions of this, the offence of
"failing to disclose" cannot apply if the subject has "reasonably
endeavoured to supply the keys". Personally I'd write a long, but
incorrect string on a piece of paper, and when requested to supply the
keys, give that up. When it doesn't work, I'd just shrug my shoulders
and say "oh, it worked last time. Maybe the disk is corrupted ?".

On Oct 13, 8:44 pm, "Airmax"  wrote:
> Monday, October 13, 2008
>
>   The Court of Appeal has ruled that someone refusing to hand over
> decryption keys, having been served with a s49 Regulation of Investigatory
> Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53),
> notwithstanding the protections which exist in the UK against self
> incrimination.
>
>   Caspar Bowden and FIPR repeatedly warned that this would be the case when
> RIPA was being considered by parliament but I think this is the first case
> where a definitive Appeal Court ruling has been made, (appealing the
> decision of Judge Martin Stephens QC at the Central Criminal Court in June
> this year). The ruling, made by Mr Justice Penry-Davey and Mr Justice Simon,
> is available in full at BAILII and the case is S & Anor, R. v [2008] EWCA
> Crim 2177 (09 October 2008). The whole thing hinges on the right to avoid
> self incrimination not being an absolute right - a number of exceptions are
> quoted in the decision - and the appellants being terrorist suspects, whose
> application to avoid handing over the decryption keys, according to the
> judges, proceeded on the assumption that what would be uncovered in the
> decryption would indeed be incriminating evidence. In addition there was no
> question of the keys being extracted by torture ("inhuman or degrading
> treatment") which would 'give rise to the exercise of the court's
> jurisdiction, under section 78 of the Police and Criminal Evidence Act 1984,
> to refuse to allow evidence to be given by the prosecution when the
> circumstances in which it was obtained undermined the fairness of the
> proceedings.'
>
>   The decision is quite short and accessible. The key parts being:
>
>   "2. During 2007 H was made the subject of a control order under the
> Prevention of Terrorism Act 2005. The order obliged him to live and remain
> in Leicestershire, and not to leave his home address without the consent of
> the Secretary of State for the Home Department. The present appellants are
> alleged to have conspired together, and with H and others, to breach that
> order. The objective of the conspiracy was to assist H to abscond from his
> address in Leicester and to convey him to a new, secret address in
> Sheffield. On 9 September 2007 S collected H and drove him there. Shortly
> after their arrival in Sheffield the police entered the premises.
>
>   3. H was found in one room, and S in another. S was alone in the same room
> as a computer. The key to an encrypted file appeared to have been partially
> entered. He was arrested, and when interviewed, made no comment. In the
> meantime his home address in London was searched. The search revealed
> computer material. Various documents had been deleted from the computer hard
> drives, but when retrieved, they provided the basis for charges against S
> under section 58 of the Terrorism Act 2000, that is, possessing documents or
> records of information of kind likely to be useful to a terrorist or
> potential terrorist. However without the encryption keys for the encrypted
> files present on the computer hard drives, and indeed the full key for
> encrypted file on the laptop on which the encryption key appeared to have
> been already partially entered in Sheffield, the encrypted files could not
> be accessed and their contents examined.
>
>   4. A was also arrested on 9 September. Computer material was later seized
> from his address by the police. One of the discs seized has an encrypted
> area. Without the encryption key access cannot be gained to it.
>
>   5. Both appellants were charged on 10th September 2007 with conspiracy to
> breach the control order imposed on H In December 2007 S was arrested while
> in custody, and following an interview in which he declined to answer any
> questions, he was charged with offences under section 58 of the 2000 Act.
> While subject to these charges, on 16 January 2008, S was served with two
> notices under section 53 of RIPA, and a similar notice was served on A on 15
> March 2008.
>
>   6. The first notice served on S immediately identified the purpose, the
> "investigation of protected electronic information", and after explaining
> that the notice imposed a legal obligation, failure to comply with which was
> an offence, it continued:
>
>   "Disclosure requirement
>
>   . I hereby require you to disclose a key or any supporting information to
> make information intelligible
>
>   the information to which this notice relates is:
>
>   the full encryption key in order to access the encrypted volume of the
> laptop computer that is exhibited as exhibit AM/1 under file path:
> C:\Documents and Settings\Administrator\My Documents\My Videos, within a
> file called Ronin.wma. This was found in the room where you were arrested at
> 386 Abbeydale Road, Sheffield".
>
>   7. The reason for the notice was explained, with particulars given of the
> precise circumstances in which the interests of national security and the
> prevention or detection of crime were said to arise.
>
>   8. The notice then described how
>
>   "disclosure can be verbal or written provided the information is
> sufficient to unlock the encryption, and that the person to whom the notice
> is given may select which of any relevant keys or combination of keys should
> be disclosed provided the information is put into intelligible form."
>
>   The remaining notices were in identical terms, appropriate to the
> electronic information identified in them.
>
>   9. Neither S nor A complied with the notices. Their position was that the
> notices which compelled them to disclose the passwords or "keys" to the
> encrypted computer files were incompatible with the privilege against
> self-incrimination. Their refusal formed the basis of the counts in the
> indictment which Judge Stephens was invited to stay on the basis that "the
> requirement to provide information to the police under Part III of RIPA
> constituted an impermissible infringement of the .privilege against
> self-incrimination" and contravened article 6 of the European Convention of
> Human Rights. In a careful ruling Judge Stephens rejected the applications.
> Applications for leave to appeal against his decision were referred to the
> full court by the Registrar of Criminal Appeals. After full argument leave
> was granted but the appeals dismissed...
>
>   20. On analysis, the key which provides access to protected data, like the
> data itself, exists separately from each appellant's "will". Even if it is
> true that each created his own key, once created, the key to the data,
> remains independent of the appellant's "will" even when it is retained only
> in his memory, at any rate until it is changed. If investigating officers
> were able to identify the key from a different source (say, for example,
> from the records of the shop where the equipment was purchased) no one would
> argue that the key was not distinct from the equipment which was to be
> accessed, and indeed the individual who owned the equipment and knew the key
> to it. Again, if the arresting officers had arrived at the premises in
> Sheffield immediately after S had completed the process of accessing his own
> equipment enabling them to identify the key, the key itself would have been
> a piece of information existing, at this point, independently of S himself
> and would have been immediately available to the police for their use in the
> investigation. In this sense the key to the computer equipment is no
> different to the key to a locked drawer. The contents of the drawer exist
> independently of the suspect: so does the key to it. The contents may or may
> not be incriminating: the key is neutral. In the present cases the
> prosecution is in possession of the drawer: it cannot however gain access to
> the contents. The lock cannot be broken or picked, and the drawer itself
> cannot be damaged without destroying the contents.
>
>   21. As it happens, in the present cases, the only persons who know how to
> access the data to which access is being sought are the appellants
> themselves. Assuming, as for present purposes we have, that the computers
> contain material which may incriminate each appellant, whether by lending
> weight to the Crown's case against them on the remaining counts in the
> indictment, or providing a basis for further criminal charges whether
> contrary to the Terrorism Act or otherwise, disclosure by them of the keys
> would tend to make material available to the prosecution which would
> incriminate them. Non-disclosure would altogether prevent the incriminating
> material from coming to light. In short, the notice issued under section 49
> of RIPA requires the appellants, under threat of criminal proceedings for
> non-compliance, to speak or write or otherwise convey sufficient information
> to the police to enable them to access the contents of their computers. The
> actual answers, that is to say the product of the appellants' minds could
> not, of themselves, be incriminating. The keys themselves simply open the
> locked drawer, revealing its contents. In much the same way that a blood or
> urine sample provided by a car driver is a fact independent of the driver> which may or may not reveal that his alcohol level exceeds the permitted
> maximum, whether the appellants' computers contain incriminating material or
> not, the keys to them are and remain an independent fact. If however, as for
> present purposes we are assuming, they contain incriminating material, the
> fact of the appellants' knowledge of the keys may itself become an
> incriminating fact. For example, to know the key to a computer in your
> possession which contains indecent images of children may itself tend to
> support the prosecution case that you were knowingly in possession of such
> material. This was the approach adopted in Re Boucher, a decision of the
> District Court in Vermont [2007] WL 4246473, where the reasoning
> acknowledged that some "acts of production" such as fingerprints, blood
> samples or voice recordings would not attract the privilege against
> self-incrimination.
>
>   22. Mr Ryder highlighted the decision of
> ...
>
> read more »

October 15, 2008

Knowledge of key distinct from encrypted data

Court of Appeal, Criminal Division
Published October 15, 2008
Regina v S(F) and A(S)
Before Lord Judge, Lord Chief Justice, Mr Justice Penry-Davey and Mr
Justice Simon
Judgment October 9, 2008

The key or password which provided access to an encrypted computer
file was a fact. It did not constitute an admission of guilt. But
knowledge of the key might be incriminating if the data contained
incriminating material.

The Court of Appeal, Criminal Division, so held when giving reasons
for dismissing, on July 29, 2008, an interlocutory appeal under
section 35 (1) of the Criminal Procedure and Investigations Act 1996
by S(F) and A(S) against the decision of Judge Stephens, QC, at the
Central Criminal Court during the course of a preparatory hearing, on
June 26, 2008, when he refused to order that counts alleging that the
appellants had committed offences under section 53 of the Regulation
of Investigatory Powers Act 2000 be stayed.

Mr Matthew Ryder and Mr Steven Powles for S; Mr Nick Wrack for A; Mr
Nigel Goldsmark QC and Mr Louis Mably for the Crown.

THE LORD CHIEF JUSTICE said S and A were alleged to have conspired
together, and with H and others, in breach a control order to which H
was subject, to assist H to abscond from his address in Leicester and
convey him to a new, secret address in Sheffield.

Shortly after their arrival in Sheffield, the police entered the
premises. S was found alone in the same room as a laptop computer. The
key to an encrypted file appeared to have been partially entered.

S was arrested, his home address in London was searched and computer
material revealed. Various documents had been deleted from the
computer hard drives, but when retrieved they provided the basis for
charges against S under section 58 of the Terrorism Act 2000, namely,
possessing documents or records of information of a kind likely to be
useful to a terrorist or potential terrorist.

However, without the encryption keys for the encrypted files present
on the computer hard drives, the encrypted files could not be accessed
and their contents examined.

A was also arrested on the same day. One of his computer disks also
had an encrypted area.

S and A were charged with conspiracy to breach the control order
imposed on H and were served, pursuant to section 53 of Regulation of
Investigatory Powers Act 2000 with notices which imposed a legal
obligation to disclose full encryption keys to allow access to the
encrypted material.

Their refusal to comply with those notices formed the basis of the
counts in the indictment which the judge was invited to stay on the
ground that the requirement to provide that information to the police
constituted an impermissible infringement of the privilege against
self-incrimination and contravened article 6 of the European
Convention on Human Rights, guaranteering the right to a fair trial.
The judge rejected the application. S and A appealed.

Their Lordships were invited to proceed on the basis that, although no
admissions were made, if the appropriate key were provided,
incriminating material might be discovered.

On analysis, the key which provided access to protected data, like the
data itself, existed separately from each defendant’s will. If
investigating officers were able to identify the key from a different
source, say, for example, from the records of the shop where the
equipment was purchased, no one would argue that the key was not
distinct from the equipment which was to be accessed.

In that sense the key to the computer equipment was no different from
the key to a locked drawer. The contents of the drawer existed
independently of the suspect; so did the key to it. The contents might
or might not be incriminating; the key was neutral.

However, the defendants’ knowledge of the keys might become an
incriminating fact, that was, it might support the prosecution case
that the defendants were knowingly in possession of the encrypted
material.

In their Lordships’ judgment, the correct analysis was that the
privilege against self-incrimination might be engaged by a requirement
of disclosure of knowledge of the means of access to protected data
under compulsion of law.

If Judge Stephens’ ruling treated that knowledge as identical to the
key to it, their Lordships respectfully disagreed. In short, although
the defendants’ knowledge of the means of access to the data might
engage the privilege against self-incrimination, it would do so only
if the data itself, which undoubtedly existed independently of the
will of the defendants and to which the privilege against self-
incrimination did not apply, contained incriminating matters.
Accordingly, the extent to which the privilege against self-incrimina-
tion might be engaged was indeed very limited.

The purpose of the statute was to regulate the use of encrypted
material and, in relation to any subsequent trial, the powers under
section 78 of the Police and Criminal Evidence Act 1984 to exclude
evidence in relation (i) to the underlying material, (ii) the key or
means of access to it, and (iii) an individual defendant’s knowledge
of the key or means of access, remained.

Neither the process, nor any subsequent trial could realistically be
stigmatised as unfair. In those circumstances, there was no basis for
interfering with Judge Stephens’ indication of how he would have
exercised his discretion if, contrary to his view, an issue of self-
incrimination arose.

Solicitors: Birnberg Peirce & Partners; Birnberg Peirce & Partners;
Crown Prosecution Service, Headquarters.

http://business.timesonline.co.uk/tol/business/law/reports/article4944714.ece

WM

On Tue, 14 Oct 2008 09:28:22 +0100, "M.I.5¾" 
wrote:

>"Airmax"  wrote in message 
>news:5e6dnVA55N6COG7VnZ2dnUVZ8qydnZ2d@bt.com...

>> It will be interesting also to see 
>> if the appellants now agree to hand over the keys or suffer the 
>> consequences - up to 5 years in prison.

>The penalty for failing to surrender the key(s) to encrypted files is 2 
>years in prison.

That's the *maximum* penalty. It will be interesting to see how it's sentenced.
Are there guidelines on this? I'd have thought that an offence with a 2 year
maximum would get a much shorter term than that, or maybe not get immediate
custody at all, on a first offence, perhaps with an early guilty plea thrown in?

Mike
--
http://www.corestore.org
'As I walk along these shores
I am the history within'