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In a landmark judgement, Westminster Magistrates’ Court has rejected an attempt by the UK’s National Crime Agency (NCA) to order activist Lauri Love to hand over encryption keys.
Judge Nina Tempia told the court on 10 May 2016 that she “was not persuaded” by the NCA’s demands that Love disclose the passwords to computer equipment seized from his home.
The decision has prevented a precedent being set which would have given UK police new powers to compel people to decrypt their electronic devices outside the safeguards of the Regulation of Investigatory Powers Act (Ripa), which regulates the powers of public bodies to carry out surveillance and investigation.
He is accused of breaking into computer systems belonging to US government agencies, including the Federal Bureau of Investigations (FBI), the Federal Reserve Bank and the Missile Defence Agency.
The NCA, which plays a leading role in the UK law enforcement’s fight against serious crime, had sought a court order to force Love to hand over encryption keys and passwords at a hearing at Westminster Magistrates’ Court on 12 April 2016.
The case is first time that police have attempted to use a court order during case-handling procedures in an attempt to gain access to encryption of data.
Tempia ruled that the NCA was wrong to seek the disclosure order outside of Section 49 of Ripa, which contains specific safeguards under the Human Rights Act.
“The case management powers of the court are not to be used to circumvent specific legislation that has been passed to deal with the disclosure sought,” she told the court.
Never going to be decrypted
Speaking after the hearing, Love said he would reject any attempts to decrypt data on any of his computers held by the NCA. If there was encrypted data on the devices, “it’s just never going to be decrypted,” he said.
The NCA sought the disclosure order after Love brought legal action against the agency to return five computers after they were seized from his home in October 2013.
The agency, which has brought no charges against Love, argued that Love should provide an encryption key or password as this was the only way the court could adjudicate “fairly on the complete contents of the devices”.
The NCA first served a Section 49 Ripa Notice to Love in February 2014, ordering him to disclose his encryption keys, but it took no further action after he did not comply.
Speaking after the hearing, Love said the judge’s decision was “an avoidance of disaster” and added that this “just returns to the status quo. I’m not surprised by the decision.”
He said if the ruling had gone against him, “it would be very concerning for anybody who is saving information – which is everybody.”
Love faces a two-day extradition hearing in June 2016.
He has argued that the US does not pass the “forum test” of an appropriate place to hear any case against him, as the offences are alleged to have taken place in the UK, not the US.
He told Computer Weekly: “It is the worst thing that I can imagine happening to me. I have to get on with my studies and my work. I can’t be too stressed about it.”
His case has parallels with that of Gary McKinnon. Love has Asperger’s Syndrome, as has McKinnon, whose extradition proceedings were stopped on humanitarian grounds.
Love’s solicitor Karen Todner said the NCA had attempted to circumvent the safeguards under Ripa by seeking disclosure of encryption through a civil court order.
“The case raised important issues of principle in relation to the right to respect for private life and right to enjoyment of property and the use of the court’s case management powers. A decision in the NCA’s favour would have set a worrying precedent for future investigations of this nature and the protection of these important human rights,” she said.
Love is due to return to Westminster Magistrates’ Court on 28 to 29 June 2016 for an extradition hearing.
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