Eager student: Encryption seems to be back in the news. Why has this come up again?
Scholarly lawyer: It never really went away. Ever since David Cameron sounded off about encryption before meeting Barack Obama in January 2015 it’s been bubbling under.
ES: What did David Cameron say about it?
SL: He said: “In extremis, it has been possible to read someone’s letter, to listen to someone’s call, to listen in on mobile communications, ... The question remains: Are we going to allow a means of communications where it simply is not possible to do that? My answer to that question is: no, we must not.” That sounded very much as if he wanted some kind of encryption ban.
ES: Didn’t Downing Street row back on that?
SL: At the end of June 2015 David Cameron said something very similar in Parliament. Downing Street followed up with: “The prime minister did not suggest encryption should be banned." They said much the same to the BBC in July 2015.
ES: Now the focus seems to be specifically on end to end encryption.
SL: Yes. Amber Rudd said in March this year that E2E encryption was “completely unacceptable”. Downing Street weighed in again: “What the home secretary said yesterday is: where there are instances where law-enforcement agencies wish to gain access to messages which are important to an investigation, they should be able to do so.”
ES: Which brings us to this weekend?
SL: Yes. Amber Rudd has disclaimed any intention to ban end-to-end encryption completely, but at the same time she appears to want providers of E2E encrypted messaging services to provide a way of getting access.
ES: So where does that leave us?
SL: The government evidently wants to do something with end to end encryption. But exactly what is unclear.
ES: Can we ask them to make it clear?
SL: Many have tried. All have failed. That isn’t really surprising, since the very nature of end to end encryption is that the messaging provider has no way of decrypting it.
ES: So if the messaging provider does have a way in, it’s no longer true end to end encryption?
ES: But hasn't end to end encryption been around for years?
SL: In the form of standalone software like PGP, yes. In fact that is what sparked the First Crypto War in the 1990s.
ES: Which ended up with universally available public key encryption?
SL: Exactly. The encryption genie couldn’t be put back in the bottle – you can write a public key encryption algorithm on a T-shirt - and they stopped fighting it.
ES: So what has changed now?
SL: Apps and the cloud. Software such as PGP is an add-on, like anti-virus software. I make the decision to get PGP from somewhere and to use it with my e-mail. It has nothing to do with my e-mail provider. But now messaging service providers are incorporating E2E encryption as part of their service.
ES: What difference does that make?
SL: Commercially, the provider will be seen as part of the loop and so as a target for regulatory action. Technically, if the communications touch the provider’s servers someone might think that the provider should be able to access them in response to a warrant.
ES: PGP-encrypted e-mails are also stored in the e-mail provider’s servers, but the provider can't decrypt those.
SL: Certainly. But if the messaging service provider itself provides the ability for me to encrypt my messages as part of its service, then it could be said that it has more involvement. It may store some information on its servers, for instance so that I can set up a connection with an offline user.
ES: If the provider does all that, why can’t it decrypt my messages?
SL: Because I and my counterparty user are generating and applying the encryption keys. With full end to end encryption the service provider never possesses or sees the private key that my app uses to encrypt and decrypt messages.
ES: But that’s the case only for full end to end encryption, right?
SL: Yes, there are other encryption models where the service provider has a key that it could use to decrypt the message.
ES: If it never sees the key and cannot decrypt your message, isn’t the service provider in the same position with end to end encryption as with original PGP? What can the service provider be made to do if it doesn’t have a key?
SL: Now we need to delve into the UK’s interception legislation. Buckle your seatbelt.
SL: As you know the new Investigatory Powers Act 2016, like the existing Regulation of Investigatory Powers Act 2000, includes power to serve an interception warrant on a telecommunications operator.
ES: Would that include a messaging provider?
SL: Yes. It shouldn’t include someone who merely supplies encryption software like PGP, but a messaging service provider would be in the frame to have a warrant served on it.
ES: What can a messaging provider be made to do?
SL: It could be required to assist with the implementation of the warrant. If it does have a key, then it could assist by using its key to decrypt any intercepted messages.
ES: Is that a new requirement under the IPAct?
SL: No, RIPA is the same. And even if the provider handed over only an encrypted message, a separate RIPA power could be deployed to make it use its key to decrypt the message.
ES: And if the telecommunications operator doesn’t have a key? How can it assist with the interception warrant?
SL: All it can do is hand over the encrypted message. Both RIPA and the new IPAct say that the telecommunications operator can be required to do only what is reasonably practicable in response to a warrant. If it has no key it cannot be made to do more.
ES: Is that it?
SL: No, the government has one more card, which might be a trump. Under both the new IP Act and existing RIPA the Minister can serve a notice (a 'technical capability notice', or TCN) on a telecommunications operator requiring it to install a permanent interception capability. This can include the capability to remove any electronic protection applied ‘by or on behalf’ of the telecommunications operator.
ES: Does ‘electronic protection’ include encryption?
SL: Yes. But pay attention to ‘applied by or behalf of’. If the encryption is applied by the user, not the telecommunications operator, then a TCN cannot require the telecommunications operator to remove it.
ES: So a lot could turn on whether, in the particular system used by the operator, the encryption is regarded as being applied by or on behalf of the operator?
SL: Yes. If so, then the TCN can require the operator to have the capability to remove it.
ES: But if the operator doesn’t have a key, how can that be reasonably practicable?
SL: For an operator subject to a TCN who is served with a warrant, reasonable practicability assumes that it has the capability required by the TCN.
ES: So the operator is deemed to be able to do the impossible. How do we square that circle?
SL: A Secretary of State considering whether to issue a TCN has to take into account technical feasibility. Clearly it is not technically feasible for an operator who provides its users with true end-to-end encryption facilities to have a capability to remove the encryption, since it has no decryption key. That might mean that a TCN could not require an operator to do that.
ES: But what if the Secretary of State were to argue that it was technically feasible for the operator to adopt a different encryption model in which it had a key?
SL: Good point. If that argument held up then the service provider would presumably have to stop offering true end to end encryption facilities in order to comply with a TCN.
ES: Could a TCN be used in that way, to make a telecommunications operator provide a different kind of encryption? Wouldn't that be tantamount to making it provide a different service?
SL: That is one of the great imponderables of this part of the IP Act.
ES: How would we know whether the Secretary of State was trying to do this?
SL: That’s difficult, because a telecommunications operator is required to keep a TCN secret. One possibility is that the new Investigatory Powers Commissioner may proactively seek out controversial interpretations of the legislation that have been asserted and make them public.
ES: Is there a precedent for that?
SL: Yes, the Intelligence Services Commissioner Sir Mark Waller in his 2014 Report discussed whether there was a legal basis for thematic property interference warrants. David Anderson QC’s Bulk Powers Review has supported the idea that the Investigatory Powers Commissioner should do this.
ES: So what happens next?
SL: Draft TCN regulations have recently been consulted on and presumably will be laid before Parliament at some point after the election. If those are approved, then the ground will have been prepared to approve and serve new TCNs once the IPAct comes into force, which will most likely be later this year.ES: Thank you.