The draft Ecommerce Bill: an infringement of human rights?

A row broke out last month between the UK government and human rights groups over the legal make-up of the draft Electronic Communications Bill. According to some experts, the Bill contravenes the European Convention on Human Rights. But how seriously should we take the allegations? Sally Watson investigates

The government's Electronic Communications Bill has courted its fair share of controversy ever since its original consultation paper in March. Pressure from industry leaders and campaigners defeated plans for perhaps the most controversial proposal - key escrow - but according to a legal audit of the draft Bill, lobbyists may have relaxed a bit too soon. The legislation in question belongs to Part III of the Bill - proposals put in place by the Home Office for the investigation of protected electronic data. On one side of the argument, the government has always been afraid that the development of strong encryption technology will leave it powerless to track criminal activity. On the other side, industry has always argued that privacy is essential for electronic business to thrive. The Home Office thought it had come up with an acceptable compromise when it dropped key escrow in favour of the current proposal to leave encryption keys in the hands of the user unless they refuse to decrypt messages. But now an independent audit, written by former law commissioner and Cambridge professor, Jack Beatson QC, and fellow barrister Tim Eicke, states there are "serious concerns" about that policy's compliance with the European Convention on Human Rights (see 'Ecommerce Bill in trouble over human rights' http://www.silicon.com/a33577 ). The Home Office has answered the allegations (see 'Home Office fights back against human rights allegations' http://www.silicon.com/a33613 ) and said the Bill is still under review. But campaigners are unsatisfied and doubt the government will make the necessary adjustments. Nicholas Bohm, lawyer and legal officer at the Foundation for Information Policy Research (FIPR), would like to see the government take a completely different approach. "We need a plain, straightforward approach. Adopting extremely complicated legislation is profoundly counterproductive. It would be relatively easy to extend existing civil laws. "The whole area is a mess legislatively. The Home Office really needs to step back and tidy it up," Bohm added. Many industry groups would like to see Part III removed from the Bill altogether. Tim Conway, director of the Information Age Unit at the CSSA, accepted there are serious law enforcement requirements - but argued they should be kept together with other police powers. "As a general principle, Part III sits awkwardly with the government's aim to encourage ecommerce," he said. The worry is that the argument could delay the already long-overdue Bill even further. "From our point of view it is critical to have laws in place which recognise e-signatures, etc. We don't want this to cause further delays," Conway said. The Bill will be introduced into Parliament during the next session. At the CBI's annual conference in Birmingham at the beginning of this month, Tony Blair underlined its importance as one of the "centre pieces" of the Queen's Speech. Jonathan Steele, chairman of the Bathwick Group, warned that Part III could easily be voted through. "Ninety per cent of MPs don't understand the issues and there isn't one unified industry voice telling them what should replace it - everyone has a different opinion." But it will be difficult for the government to dismiss opinions such as that of Jack Beatson. His position as a former law commissioner will carry weight with many MPs. And only this week a Select Committee Report called on the government to provide more clarification of Part III. Campaigners at Justice and FIPR are warning that if Part III does go through unchanged it could face an early legal challenge. According to Beatson the category of potential "victims" is very wide, and anyone threatened by the legislation "could bring a case against the United Kingdom government directly before the Court in Strasbourg". And the complainants are lining up already.