RIPA Part III consultation blog

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Investigation of Protected
Electronic Information
A public consultation

A PUBLIC CONSULTATION

Summary

This consultation paper seeks views on the contents of a draft statutory code of practice on investigation of protected electronic data, which relates to the exercise and performance of the powers and duties that will arise from the implementation of Part III of the Regulation of Investigatory Powers Act 2000.

The Government welcomes comments on the draft before the code is laid before Parliament for approval later this year.

You are invited to provide a response by 30th August 2006:

• by e-mail to: encryption@homeoffice.gsi.gov.uk or

• by post to:
  Graeme McGowan,
  Covert Investigation Policy Team,
  Home Office,
  5th Floor,
  Peel Building,
  2 Marsham Street,
  London SW1P 4DF

  Introduction

  The development of technologies that use, store and protect electronic data has had a profound effect on all of our lives over the last ten years. Those technologies are providing ever more new and diverse opportunities to communicate and share information, to learn, to be entertained and to do business.

  2. For electronic business transactions in particular, whether it is providers in a supply chain or individuals buying services online, the need to be able to protect electronic data in order to communicate orders securely and to store customers and clients data securely is integral to the continuing development of electronic business - and to making the UK the best place in the world to do electronic business.

  3. However the same technologies that are enabling electronic business to flourish, and enabling individuals to secure the increasing amounts of data they hold about their own daily lives, are also being used by terrorists and criminals to facilitate and conceal evidence of their unlawful conduct so as to evade detection or prosecution.

  4. Terrorists and criminals have always sought to conceal evidence of their conduct and communications, but technology is offering new ways to do so. Where documents were once stored in a safe or a secure cabinet, which could Investigation of Protected Electronic Informationbe broken into without a key by law enforcement officers, they can now be stored electronically and their contents made unintelligible without a key which gives access to the data and, if not the same one, a different key which makes sense of the data. Electronic communications can equally be made unintelligible to anyone other than those communicating with each other.

  5. Protected electronic data has the effect of frustrating enquiries in the immediate period following the arrest of suspects and the seizure of computer equipment and data storage media. Where information or evidence cannot be readily derived from protected electronic data that delay can put pressure upon charging decisions against custody time limits and can, potentially, lead to individuals who pose a threat to the public being released without charge.

  6. Part III ('Part III') of the Regulation of Investigatory Powers Act 2000 ('the Act') established powers to impose a requirement upon a person to put protected electronic information into an intelligible form or to disclose a key which will enable the data to be put into an intelligible form. Those provisions have not yet been implemented because the development and adoption of encryption and other information protection technologies has been slower than was anticipated when the Act was passed. The Government has, however, kept under review the need to implement the provisions in Part III, by taking account of the extent to which protection of electronic data has frustrated law enforcement and obstructed the delivery of justice to victims.

  7. Over the last two to three years, investigators have begun encountering encrypted and protected data with increasing frequency. This, and the rapidly growing availability of encryption products including the advent of encryption products as integrated security features in standard operating systems, has led the Government to judge that it is now timely to implement the provisions of Part III.

  8. Section 71 of the Act provides that the Secretary of State shall prepare and publish a draft code of practice, and consider representations made to him about the draft. The purpose of this consultation is to invite comments on the draft code of practice for Part III.

  9. Some reading this consultation paper will recall an illustrative draft of the code which was made available to Parliament and the public when the (then) Regulation of Investigatory Powers Bill was before Parliament. We are grateful for the comments received at that time, and subsequently. So far as possible, those earlier comments have been taken into account in this revised draft of the code, which has been substantially rewritten.

  10. This formal consultation provides an opportunity to tell the Government if there is anything more or anything different that should be included in the code before it is put to Parliament for approval.