On return to America
On return to America
Posted Jun 19, 2017 15:54 UTC (Mon) by farnz (subscriber, #17727)In reply to: On return to America by Wol
Parent article: Ryabitsev: Travel (Linux) laptop setup
That's false - the offence in the Regulation of Investigatory Powers Act part III, which is the current law governing failure to decrypt, it is a statutory defence to demonstrate that you did not have the key at the point the decrypt order was given to you, and did not come into possession of it after the order was given to you. The exact wording is in section 53 of the Act:
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.
While the burden of proof is reversed (it's up to the recipient of the order to prove that they did not have the key), in the situation you describe, the fact that I can prove that you planted the encrypted file on my system, but not the key, is enough to act as a defence; of course, the likely outcome is a new decrypt order focused on you instead of me. I appreciate that, as someone not necessarily resident in the UK, you may be ignorant of our laws, but they are published in full on the National Archives Legislation site, and you can research them before repeating lies you've been told about them.
Posted Jun 19, 2017 22:47 UTC (Mon)
by anselm (subscriber, #2796)
[Link] (1 responses)
I don't think that's actually what this says. “A person shall be taken to have shown that he was not in possession of a key […] if the contrary is not proved beyond a reasonable doubt” means that the prosecution must prove beyond a reasonable doubt that the person was in possession of a key, or it will be assumed by default that the person wasn't. Alternatively, the person can actively provide “sufficient evidence to raise an issue” with respect to the prosecution's claim that they have a key, which is basically reasonable doubt from the other end.
Proving a negative is always difficult, and here the “person” does not have to prove conclusively that they don't have a key; they just need to poke a sufficiently large hole into the claim that they do.
Posted Jun 20, 2017 0:16 UTC (Tue)
by karkhaz (subscriber, #99844)
[Link]
I don't think it's "alternatively". The sentence you're talking about contains an "and," not an "or":
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—
So indeed, your parent is right: the onus is on the defendant to produce sufficient evidence that they are not in possession of a key, and this is _in addition to_ their possession of a key not having been shown beyond reasonable doubt by the prosecution.
On return to America
While the burden of proof is reversed (it's up to the recipient of the order to prove that they did not have the key) […]
On return to America
(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.