Passwords and prosecutions

The curious case of Oliver Drage.

When the news broke last week that a teenager had been given a custodial sentence for failing to provide his password to the police, the details of the story appeared incomplete.

The essentials of what had happened were as follows: Oliver Drage, 19 (and so only just a teenager), did not give a password to the police when formally requested to do so. He was prosecuted under the Regulation of Investigatory Powers Act 2000 and given a custodial sentence of 16 weeks in a young offenders institution (which may or not be regarded as the same as being "jailed").

However, the widespread media coverage of this conviction seemed problematic. Some things did not add up.

Let's start with the press release from Lancashire police.

Teen jailed for four months after failing to give up computer password

A TEEN who refused to give police officers an encryption password for his computer has been jailed for four months.

The case is believed to be the first of its kind in Lancashire.

Oliver Drage, 19, formerly of Naze Lane, Freckleton, was arrested in May 2009.

Drage's computer was seized but officers could not access material stored on it as it was protected by a 50-character encryption password. Drage was then formerly requested to disclose the password, which he failed to do.

Appearing at Preston Crown Court, Drage pleaded not guilty to failing to disclose an encryption key -- an offence covered by the Regulation of Investigatory Powers Act 2000. At his trial in September a jury took less than 15 minutes to find him guilty of the offence. Yesterday (Monday Oct 4), Drage was sentenced to 16 weeks in a Young Offenders Institution.

Detective Sergeant Neil Fowler, Blackpool Police, said: "Drage was previously of good character so the immediate custodial sentence handed down by the Judge in this case shows just how seriously the courts take this kind of offence.

Computer systems are constantly advancing and the legislation used here was specifically brought in to deal with those who are using the internet to commit crime. It sends a robust message out to those intent on trying to mask their on-line criminal activities that they will be taken before the courts with the ultimate sanction, as in this case, being a custodial sentence.

This press release is troubling for both what it does and what it does not say.

It is written in a tabloid-like and sensationalised way (for example, "TEEN" in screaming capitals), which seems to me to be deeply inappropriate for an official communication about a serious matter. It also refers to "those using the internet to commit crime...those intent on trying to mask their on-line criminal activities" when, on the face of it, no such charge had been made against this particular defendant and no prosecution carried out.

But when this press release was picked up by the newspapers, certain further information about Drage was published.

From the Guardian: "Oliver Drage, 19, of Freckleton, Lancs, had originally been arrested in May last year by a team of officers from Blackpool tackling child sexual exploitation."

And from the Daily Mail: "Teenager jailed for refusing to give computer password to police investigating child sex crimes"

But the press release did not mention child sex exploitation, nor did it mention the type of police officers who arrested him. Whatever Drage may or may not have stored on his computer, he had not been either charged for or convicted of any sexual offence.

However, his (distinctive) name was now associated with the investigation of serious sex offences by several newspapers on the back of a sensationalist press release which itself mentioned nothing about any sexual offences.

So I asked for further information about this from the press office of Lancashire police. First, I received information about the police team which had arrested Drage:

The Awaken Project is a very close working partnership between Blackpool Council and Lancashire Police and other.

The team is responsible for using an intelligence led and pro active approach to protect children in Blackpool who may be at risk of sexual exploitation. Police officers and social workers on the team are responsible for jointly investigating cases and targeting suspected offenders. Staff from health and education departments supplement the team in an effort to impact upon the behaviour of young and potentially vulnerable persons.

I was also told on the telephone the nature of the offence on suspicion of which Drage was arrested (even though he was not charged nor convicted). I asked why Lancashire police thought it appropriate to link the defendant's name with child sex allegations when he was neither charged nor convicted in respect of such serious matters. The response:

You will notice that that aspect was not mentioned in the official press release and was given to you as guidance over the telephone when you rang. It is therefore your decision if you wish to make that link in print.

I then pointed out the the child sex abuse aspects had been mentioned in many newspapers, and gave the examples of the Guardian and Mail above. Was I correct in my assumption that Lancashire police was their source for this extra information? The response:

The information was given as guidance to all journalists who rang and asked why Drage had originally been arrested. As previously mentioned, it is not included in the press release - so was not in the 'brief' we gave the press - and it is down to the individual publication if they chose to print that information.

Hope this helps.

I reverted, now asking why Lancashire police believed it was appropriate to mention it as guidance. After all, the defendant was now publicly and widely associated with child sex investigations (perhaps the most serious investigations one can be associated with) when he was neither charged nor convicted of any sex offence.

I will refer you back to my previous answer. The information was given as guidance (and was not included in the press release) to assist journalists in their reporting of the matter, by clarifying why Drage was arrested and his computer seized. Failure to give this guidance could have resulted in inaccurate assumptions and reporting of the case.

All journalists were pointed to the fact that this information was not in the press release and that it was their decision should they chose to publish the information that was given to them as guidance.

In contrast, the Crown Prosecution Service responded to my queries without any reference at all to the sexual offences for which Drage had been arrested. Indeed, for the CPS the prosecution was explicable on the straightforward facts of this particular offence:

Oliver Drage was found guilty on October 5, at Preston Crown court of failing to provide his computer's password contrary to section 53 of the Regulation of Investigatory Powers Act 2000.

The CPS received a file of evidence from Lancashire Police after he was served with a court order in December 2009 section 49 of RIPA 2000, requiring him to disclose the password.

He failed to do so within the three weeks' period specified on the order. After a thorough review of the evidence, we decided that there was sufficient evidence and it was in the public interest to prosecute Oliver Drage for this offence as his failure to disclose the password has obstructed an ongoing police investigation.

Evidence showed that the defendant admitted in police interviews that he had set an encrypted password of between 40 and 50 characters containing both letters and numbers using an encryption software programme and that he had had originally relied on his memory to recall it but could not recall it when he was served with the notice.

The jury heard both the prosecution and defence case and accepted the prosecution case that the defendant must have kept a record of this very complex password, rather than relying on memory, and that he had deliberately failed to disclose it to the police. They returned a guilty verdict after 15 minutes deliberation.

As the defendant claimed to have forgotten a password that he had previously memorised, it was for the prosecution to rebut this and to prove beyond all reasonable doubt that this was not the reason for the defendant failing to disclose it.

I also asked the CPS for what guidance it had for those who also may forget passwords, and their response was:

Part III of the Regulation of Investigatory Powers Act 2000 (the Act) and Investigation of Protected Electronic Information Code of Practice came into force on the 1st October 2007. The Code of Practice provides guidance to be followed when exercising powers under the Act to require disclosure of protected electronic data in an intelligible form or to acquire the means by which protected electronic data maybe accessed or put in an intelligible form.

Overall, there are two issues about this curious case.

First, there is the narrow issue of the prosecution and conviction. On the basis of the CPS statement, one can see why a claim to have forgotten a previously memorised encrypted password of between 40 and 50 characters, and not to have written it down elsewhere, would rather strain credulity.

Second, there is the worrying way in which highly prejudicial information is provided and published about an individual charged for and convicted of an offence very different for the one for which he was arrested on being on suspicion of having committed.

It may well be that Lancashire police break the encryption code.It could be that there is sordid material yet to be revealed which may have warranted a charge and even conviction of a serious sexual offence. We simply do not know. And neither do the Lancashire police.

However, in the meantime, an individual is now publicly associated with a serious investigation in respect of which was neither charged nor convicted; a police force publishes press releases as if they were tabloid stories and also furnishes highly-prejudicial information, but passes the buck if the press publishes it (which, of course, they will do); and the rest of us are really none the wiser whether a four month custodial sentence in this case was because of the gravity of the original suspicions or just for the implausibility of not knowing or noting down a 40 to 50 character password.

There is something not right here.

 

David Allen Green is a lawyer and a writer. He was shortlisted for the George Orwell blogging prize in 2010. He blogs for the New Statesman on legal and policy matters.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder