Image credit: Free open source encryption tool, TrueCrypt.
The Netherlands Government will introduce a bill in 2013 to impose much heavier penalties on suspects who refuse to decrypt data in a criminal investigation.
The bill would close a gap in police powers in the Netherlands, where network operators can be ordered to decrypt network data in an investigation, but suspects cannot.
The Ministry of Security and Justice has positioned the bill as a necessary tool to fight “cunning criminals” and child pornography networks; however it will also have a wider application in terrorist cases or any criminal investigation where there is an “urgent interest”.
“Only the Public Prosecutor can give the order, subject to written authorisation from the examining judge, where there is an urgent interest with a view to the investigation. An example is where victims are in danger or kept in degrading circumstances, and it is urgent that the criminal behaviour is immediately stopped. Often this involves minors,” the ministry said in a statement last week.
Security and justice minister Ivo Opstelten had commissioned Tillburg University’s Centre for Law, Technology and Security to determine whether a decryption order would conflict with the principles in Article 6 of the European Convention on Human Rights that suspects cannot be forced to cooperate in their own prosecution.
“The researcher found that, under certain strict conditions, this is not incompatible with a decryption order. The minister seconds that and has defined very strict safeguards when exercising and applying the power in question,” the Ministry said.
Opstelten has not outlined what penalties he has in mind for non-compliance, but wants it to be “significantly heavier” than the current three month sentence for resisting a public servant.
The Ministry also pointed to similar laws in France and the UK (RIPA), which impose up to five year maximum prison terms for refusing to decrypt data. In the UK, any case can attract a two-year sentence while non-compliance in child abuse and terror related matters can lead to a five-year sentence.
In Australia, refusing to comply with a decryption order is punishable by 6 months imprisonment, according to the EFA.