‘Terror suspects must hand over their passwords’
TERROR suspects who refuse to hand over their mobile phone and social media passwords should face up to five years in jail under a new offence proposed by the Government’s legal adviser.
Jonathan Hall, QC, the Government’s independent adviser on terror legislation, said he was concerned that current laws did not deter suspected terrorists from withholding phone or computer data that could help thwart an attack.
“Although advances in de-encryption are constantly being made, it is quite possible in the near future that terrorism investigations will be defeated by suspects withholding passwords,” he warned, adding that police would be unable to access electronic evidence of suspects planning an attack or downloading terrorist publications.
There is an existing offence under the Regulation of Investigatory Powers Act of failing to comply with a police request but it can only be used if all other methods have been tried and officers can prove there would be a “benefit”.
Mr Hall said the conditions were too stringent for police, who under current laws had just 14 days to hold and build a case against a terror suspect before having to charge them or release them.
“These preconditions may be difficult to establish, especially when counter-terrorism police are working against the clock in relation to multiple individuals and multiple devices,” he said in a speech at a reception hosted by the Henry Jackson Society in the House of Commons last night.
He proposed that Parliament could consider a new offence of refusing to hand over encryption keys during a terrorist investigation, “when a clear requirement has been made and with the benefit of legal advice, is a cause of harm”.
Such a move would raise the prospect of whether the
Government could also impose such an offence on social media giants, who have, in the past, refused to hand over passwords or encrypted data in criminal investigations by police.
Mr Hall also proposed possession of footage of mass killings, executions or torture – which, he said, he was surprised to find was not already an offence – could become a criminal act, modelled on the extreme pornography offence.
“I think there remains a question of whether what is needed is an offence which widens the sort of material that cannot be distributed, or an offence which can be committed merely by possession,” he said.
“Whatever the case, there is an absolute need to avoid legislative overreach: journalists and those trying to
‘Whatever the case, there is an absolute need to avoid legislative overreach’
draw attention to human rights abuses must be protected.” Mr Hall also suggested that anti-terror laws may need to be adapted to combat the threat of terrorist groups operating entirely online, making it difficult to identify members or leaders.
He called for a new legal framework to regulate police use of biometrics, which was expanding into new areas – from facial recognition cameras to voice pattern and gait analysis.
“Amazingly, the Terrorism Act 2000 only contemplates the biometrics of DNA and fingerprints,” he said.
He also highlighted the risks from terrorists in jail, citing an attack on prison officers in HMP Whitemoor as evidence that terrorism did not stop at the prison door.
“At a superficial level it was more palatable for an unknown to slip through the net than for a known terrorist to return to terrorist violence: the desire to insulate from this risk is all the greater,” he said.