State access to encrypted data in the United Kingdom: The ‘transparent’ approach

Abstract

This article foregrounds four key powers through which the UK intelligence and police agencies (broadly referred to hereafter as ‘law enforcement’) may access encrypted communications and data. It is structured as follows. First, a brief overview of the European Court of Human Rights’ jurisprudence on communications surveillance contextualises the overarching normative framework that must be translated into domestic law. The four powers are then discussed, both in legal and practical terms. The first two powers operate covertly, without the knowledge of the target. The latter two operate coercively, allowing police to demand individuals unlock encrypted data on penalty of prosecution. The article argues that the overall effect is to weaken encryption systems globally.