It’s almost always the case that a new or changed law means that there is a new kind of criminal, because there is by definition a way to contravene the new law. However, when the law allows the real criminals to hide behind others who will take the fall, that’s probably a failure in the legislation.
The Regulation of Investigatory Powers Act 2000 may be doing just that. In Section 51, we find that a RIPA order to disclose information can be satisfied by disclosing the encryption key, if the investigating power already has the ciphertext.
Now consider this workflow. Alice Qaeda needs to send information confidentially to Bob Laden (wait: Alice and Bob aren’t always the good guys? Who knew?). She doesn’t want it intercepted by Eve Sergeant, who works for SOCA (wait: Eve isn’t always the bad guy etc.). So she prepares the information, and encrypts it using Molly Mule’s public key. She then gives the ciphertext to Michael Mule.
Michael’s job is to get from Alice’s location to Bob’s. Molly is also at Bob’s location, and can use her private key to show the plaintext to Bob. She doesn’t necessarily see the plaintext herself; she just prepares it for Bob to view.
Now Alice and Bob are notoriously difficult for Eve to track down, so she stops Michael and gets her superintendent to write a RIPA demand for the encryption key. But Michael doesn’t have they key. He’ll still probably get sent down for two years on a charge of failing to comply with the RIPA request. Even if Eve manages to locate and serve Molly with the same request, Molly just needs to lie about knowing the key and go down for two years herself.
The likelihood is that Molly and Michael will be coerced into performing their roles, just as mules are in other areas of organised crime. So has the legislation, in trying to set out government snooping permissions, created a new slave trade in crypto mules?