Braverman floats criminalisation of ‘highly encrypted devices’

Government consults on proposals to create new offences to clamp down on technologies it believes are enabling serious crime

Credit: René/Pixabay

The government has unveiled proposals to update the law to criminalise the use of technologies including digital templates for the construction of weapons and “sophisticated encrypted communication devices” that it suggests have no legitimate legal use.

The Home Office is leading a public consultation process in which feedback is sought on the possibility of criminalising the possession or use of certain “tools and technology” which necessarily prompt “a strong suspicion… [of] being used for the purpose of serious crime”.

This includes “highly encrypted devices… [that] have been modified [to] create considerable barriers to law enforcement agencies collecting intelligence and evidence in respect of serious crimes”.

“These devices are expensive to obtain and involve complex methods of communication with other users of such devices,” the consultation document says. “Just as their level of encryption makes them ideal for those engaged in serious criminality, so their price and complexity make it harder to foresee a need for anyone to use them for legitimate, legal reasons.”

The proposals, unveiled this week by home secretary Suella Braverman, are the latest in a long and growing list of criticisms and concerns regarding encryption technologies that have been voiced or amplified by ministers in recent years – and then often robustly challenged by representatives of industry, civil society, and even other parts of govermment. 

In January last year, the Home Office launched a highly emotive comms campaign suggesting that end-to-end encryption technology will enable child abuse. Little more than a week later, the Information Commissioner’s Office issued a public statement warning that failing to implement the security technology “leaves everyone at risk – including children”.

Alongside the latest efforts to clamp down on encryption, government also proposes criminalising “digital files or templates for 3D-printed firearms components”. The consultation says that the National Crime Agency has identified so-called hybrid firearms – in which “3D-printed components are combined with easily accessible metal non-firearms parts” – as a “significant threat”.

The Home Office suggests creating offences related to domestic ownership of two other items characterised as tools of the criminal trade: hidden compartments in vehicles; and pill presses for manufacturing tablets.

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The proposals are presented as a way of plugging legislative gaps which mean that “it is not always possible to pursue criminals who make, modify, supply, offer to supply or possess articles for use in serious crime”.

The consultation outlines several instances where existing offences rely on prosecutors having to prove the intentions, beliefs or state of mind of a defendant. In the case of in-vehicle hidden compartments, meanwhile, such vehicles can only be seized by customs authorities at the UK border – and in no other context.

“The government’s assessment is that there is a gap in the legal framework,” the consultation says. “Manufacturers, modifiers and suppliers profit from the supply of such articles to serious criminals, but keep just enough distance from the offences being carried out to avoid facing any consequences. Similarly, where people are found in possession of articles in circumstances which point to involvement in serious crime, it can be difficult to show the level or knowledge or intention that would be required to prosecute them for a criminal offence.”

The consultation indicates that the potential punishments for any newly created offences “would be set in line with comparable offences”. The document cites the example of the Fraud Act, in which the possession or use of an article used to commit fraud carries a maximum penalty of five years imprisonment – a sentence that can be doubled in cases where someone is convicted of manufacturing or supplying such articles.

Responses are open until 5pm on 21 March and anyone wishing to take part in the consultation can complete an online questionnaire – or download a form that can be filled out and posted to the Home Office. 

The launch of the public feedback process came alongside the announcement by home secretary Suella Braverman of a new government strategy – dubbed ‘clear, hold, build’ – for tackling organised crime gangs in the areas of the country where they are most rife. The approach will task police with “ruthlessly” expelling gangs from such areas, before undertaking to “maintain grip and hold the location” to prevent competing gang from establishing a foothold before, finally, supporting efforts to “build the community into a more prosperous area, less susceptible to the draw of crime groups”.

In her foreword to the consultant documents, Braverman said that the new laws were being mooted as “the threats we face are evolving constantly”.

“Criminals have been resilient in the face of the coronavirus pandemic and are increasingly exploiting online spaces, emerging technologies and commercially available tools to avoid detection and circumvent our legislation,” she added.


Sam Trendall

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