Cryptography and jailtime in SA

Withholding a password, or other secret key needed to decrypt data, after being instructed to provide it by a South African judge could result in severe penalties, Lance Michalson, an Information and Communications Technology (ICT) lawyer at Michalsons Attorneys, recently told MyBroadband.

The topic of key disclosure received some publicity recently when Pirate Party founder, Rick Falkvinge, wrote about it in his blog earlier this year.

According to Falkvinge, under UK law, a person can be sent to jail for refusing to give up encryption keys, regardless of whether you have them or not.

Falkvinge goes on to paint a dire picture of how a person can get five years in prison if it’s a terrorism or child porn investigation, and two years otherwise, just for having files the authorities think are encrypted.

South Africa has similar key disclosure laws, but according to Michalson, you must have or had possession of the decryption key before you’ll face a fine (up to R2m) or prison (for up to 10 years).

Lance Michalson

Michalson said that government has the dual-responsibility of promoting and facilitating the lawful use encryption by business and others, while making it as difficult as possible for criminals to exploit it for their own purposes.

“Investigations into criminal offences are often hampered by the discovery that material that might otherwise assist the investigation, or be used in evidence, has been encrypted,” Michalson wrote in an article on the firm’s website.

It is occasionally possible for law enforcement agencies to crack the encryption key, Michalson said, though this comes at considerable effort and expense.

This is also likely to become increasingly difficult, if not impossible, as technology develops, Michalson said.

Michalson explained that under RICA, one must apply to a judge for a “decryption direction”, in terms of which the holder of an encryption key is directed to disclose that key or provide decryption assistance in respect of encrypted information.

However, to get the direction in the first place, Michalson said that you have to produce sufficient evidence to the judge that there are reasonable grounds to believe that the decryption key holder is in possession of the encrypted information and the decryption key.

Law enforcement should (in theory) be able to identify the holder of the key if their details as a supplier of crypto software have been entered in the Department of Communications’ register of crypto suppliers. This is the link with the crypto registration provisions in the ECT Act, Michalson explained.

“In many instances, in practice, however, the supplier will not be able to provide the identity of the user of the crypto software,” Michalson said.

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