On 10 May 2016, a UK judge will make a decision that will have serious implications for journalists, advocates, activists, whistleblowers, members of the legal profession and other groups who handle sensitive communications or other data. At 10am on that date, British student Lauri Love returns to Westminster Magistrates’ Court for Judge Tempia’s ruling. Tempia will decide whether Love should be ordered to surrender his encryption keys to the National Crime Agency, following oral arguments presented on 12 April. Should Judge Tempia rule in the NCA’s favour, this will give the police new powers to compel people to decrypt their electronic devices, even if they are not suspected of a crime.
Love’s computers were seized in October 2013 in connection with an NCA investigation, which was eventually dropped. Love, who is now facing extradition requests from three separate US court districts, has taken the NCA to court to try to get five of his items returned to him. The NCA says that some of these items contain encrypted files that they have not been able to read.
This is the second time an attempt has been made to force Lauri Love to hand over his keys. The UK has a legal mechanism to compel the surrender of encryption keys, set down in Part III of the Regulation of Investigatory Powers Act 2000. Although an order was issued to Love under this Act in January 2014, the NCA allowed the order to expire with no further consequences. With that avenue closed, the NCA is now attempting to use Love’s civil case to get the court to issue a direction for Lauri to hand over his passwords, under the threat of contempt of court.
Legal experts and civil society campaigners argue that 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.
Lauri Love’s lead counsel, Ben Cooper of Doughty Street Chambers, has warned:
The case raises important issues of principle in relation to the right to respect for private life, right to enjoyment of private property, and the use that should be made by the court to make directions in circumstances where the NCA has failed to follow through on statutory procedures set out in the Regulation of Investigatory Powers Act 2000. Mr Love is also effectively being asked to hand over material which the authorities could seek to use to incriminate him.
Lauri Love is represented in his Police Property Act case pro bono by Stephen Cragg QC of Monckton Chambers. His UK legal team comprises Ben Cooper of Doughty Street Chambers and Karen Todner from Kaim Todner. Love’s US legal counsel is Tor Ekeland. His extradition hearing is scheduled for 28-29 June.