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Updated: Love must prevail: Tuesday hearing marks a new skirmish in the cryptowars

Update: 12 April: ruling postponed
until 10 May, 10am

After a late start, in front of a packed courtroom, Judge Tempia quickly adjourned today’s hearing for an hour to read skeleton arguments. After the break, the NCA said it had no objections to releasing skeleton arguments — though not exhibits — to the press, so those will be made available soon.

The NCA claimed it saw evidence of hacking on his computer screen and should therefore be allowed to hold on to his computer. Lauri later said this claim was ridiculous and that the NCA has no evidence that there is encrypted material on his devices in the first place.

Lauri’s lawyers argued that the NCA failed to follow statuary proceedings when it applied for a RIPA order. The NCA later conceded that Lauri’s human rights (under the European Convention on Human Rights) have been impacted by this case.

Finally, Judge Tempia announced that her ruling on compelling Lauri to surrender his keys has been postponed until 10 May at 10am.

Original post:

Tomorrow, Tuesday 12 April, a question of public policy with serious consequences for the use of encryption in the United Kingdom will be decided by a judge at Westminster Magistrates’ Court.

Lauri Love’s civil suit against the UK’s National Crime Agency for the return of his encrypted hard drives raises issues which go to the heart of the current public debate about technology, privacy and police powers.

The thirty-one year old computer security expert is suing the NCA for the return of electronic devices seized by National Crime Agency during a raid on his family home in October 2013. No charges were ever laid against Lauri in the UK, but the NCA is asking that the court agree that, as a precondition for giving back his drives, Love should surrender his passwords and allow the police to trawl through his private data to prove all of the data is his.

Police powers on encryption are strictly defined by the Regulation of Investigatory Powers Act 2000 (RIPA). Under RIPA, police have powers to order suspects and accused persons to give up their passwords. But although the police did issue Lauri Love with a RIPA order in February 2014, they allowed it to expire with no further consequences. The NCA is now arguing that Love should be compelled to decrypt his drives under the rules of procedure in civil cases.

Legal experts and civil society campaigners argue that the judge is being asked to decide a matter of public policy. They say the NCA is making an end run around limitations on its statutory powers, in effect making a power grab that will place a question mark over the legality of encryption in the UK.

Courage Acting Director Sarah Harrison said:

After Edward Snowden’s revelations, we’ve seen more and more journalists starting to encrypt their communications – that’s a good thing. It seems that the UK government’s response is to set its sights on information it can’t read and try to compel decryption even in the absence of a criminal investigation. Lauri Love’s case is a vital test case in the fight for all of us to be able to protect our communication. Lauri deserves our support for the stand he’s taken and for trying to prevent a precedent that would endanger us all.

Gavin MacFadyen, director of the Centre for Investigative Journalism, and a trustee of the Courage Foundation said:

Alarm bells should be ringing over this case. It has serious implications for journalists and others who must use encryption in the UK. The Apple case was all about digital backdoors – well in this case the NCA is effectively trying to legislate entirely new powers by a legal backdoor. This is something that should be publicly debated and carefully considered by Parliament, not off to the side in a civil property suit nobody is paying attention to. The NCA’s intentions are quite clear in their seeking to close down press access to the arguments in this case. And you can conjecture that the NCA isn’t doing this just because it wants to make life difficult for Lauri Love. It’s just like the FBI. Police always want less oversight and more power.

WikiLeaks founder and Courage Trustee Julian Assange said,

The UK is already one of the worst jurisdictions in the world in which to practice the basic human right to privacy, but it may be about to get even worse. In the case of Lauri Love, the National Crime Agency is making a grab for even more police powers. If it succeeds, anyone who uses encryption will be considered suspect under the law – a breathtaking reversal of the presumption of innocence. Lauri Love is fighting this case for the rights of all UK residents against excessive and abusive policing. Because the UK is a laboratory for these kinds of repressive policies, the case will also have wide-reaching repercussions internationally. Love must prevail.