Fighting child pornography through UK encryption law: a powerful weapon in the law’s armoury? [2012] CFLQ 410

Keywords: child pornography; encryption; Policing and Crime Act 2009; Regulation of Investigatory Powers Act 2000; sex offenders

Encryption works by scrambling digital images and documents, rendering them unintelligible without a key to return them to a comprehensible form. As modern encryption programmes have traditionally proved difficult to break without the key, there has been growing concern that by using encryption to hide their files, criminals will be able to evade investigations. Although the possibility of criminals in general hiding behind encryption is problematic, the risk is understood to be particularly acute in the context of sex offenders. Should such offenders use encryption and withhold the key, their trading and communication networks could be irrevocably hidden from view, as could millions of indecent images. A generic encryption offence was created by the Regulation of Investigatory Powers Act 2000 whereby the failure to surrender encryption keys upon demand would be subject to penalty, but recently - and of particular note - amendments by the Policing and Crime Act 2009 to the offence provide for escalated sentences where the circumstances of the investigation relate to child indecency. In light of these amendments, this article interrogates the necessity and validity of these revised RIPA powers as part of the child protection framework, and considers some alternatives to compelling the disclosure of keys.

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