Litigator's View

Sean Wilken on the attempt to control the exchange of electronic information with the Regulation of Investigatory Powers Bill. Sean Wilken is a barrister at 39 Essex Street.

Electronic information exchange creates a tension between the need for regulation and the individual's need for privacy. The products of this are sophisticated monitoring systems – the Echelons, the Carnivores and the Clippers – and the sophisticated means of avoiding those monitoring systems: cryptography.

The Regulation of Investigatory Powers (RIP) Bill is the UK's attempt to encourage electronic commerce and information exchange while retaining some regulatory control. The RIP Bill does this by targeting cryptography.

In its present form, the RIP Bill has two elements. First, it requires internet service providers (ISPs) to monitor data traffic through their servers. Monitoring will be carried out by a black box installed on the server. The black box will transmit data passing through the server to the Government Technical Advisory Committee (GTAC). Second, where GTAC detects encrypted communication, the state can demand that the sender and recipient give it the means (their keys) by which the message can be decrypted.

On a purely legal level, there must be serious concerns about the controls on such a use of state power and whether the RIP Bill complies with protection given to correspondence under Article 8 of the European Convention on Human Rights. On a practical level, the tension between privacy and commerce highlights how far behind the legal profession has lagged in its approach to electronic information exchange.

Most lawyers use email to communicate with clients and other advisers. They do so, however, with impunity. Few realise that using email is akin to handing a postcard to a stranger and politely asking them to deliver it without reading its contents.

The RIP Bill may encourage lawyers to add, along with the contractual, virus and liability disclaimers, that encryption is available on request.