Encryption confusion exposed in landmark court case

Confusion surrounding the definition of the word 'encryption' was at the centre of a landmark court case this week that could impact on future legislation such as the Electronic Communications Bill.

A husband and wife team was found guilty yesterday of what a judge described as "fraudulent activity" in the making and marketing of a decoder that let customers of Telewest Communications view cable TV channels for free.

Magistrate Philip Browning found the couple, Peter and Carol Whittall (both 60) of Mossey Green, Ketley Bank, Telford, guilty under the Copyright Designs and Patents Act 1988, which says it is an offence for any person to make, sell, offer or advertise for sale any unauthorised decoder.

Peter Whittall invented the Versachip decoder and sold around 200 of them to Telewest customers in the Telford area for about GBP60, with his wife's help.

A decoder is defined in the Act as any apparatus designed or adapted to decode encrypted transmissions. The defense argued that Telewest's transmissions were not encrypted, therefore they were not guilty according to the Act.

But Browning ruled that Telewest's transmissions are encrypted, after hearing the term encryption defined by Neil Barrett, expert witness for the prosecution, and technical director for Information Risk Management.

Barrett said Telewest had encrypted the signal based on three criteria: the intent to hide the original message, the procedure undertaken to hide the content of the transmission, and the requirement of specialist knowledge to recover the message.

"The law is clearly groping its way towards a definition," he said pointing out the "inadequacy" of a definition in the explanatory notes to a draft copy of the Electronic Communications Bill which limits the definition of encryption to text.

Barrett warned that allowing the definition of encryption to be restricted to text would give paedophiles who encrypt illegal images "a giant loophole."

Browning accepted Barrett's definition, but noted in his summing up that "there are clearly different definitions of encryption."

He rejected forensic engineering associate David Bristowe's assertion that the Telewest signal was not encrypted, but had been "converted from one form to another."

Browning found the couple guilty, adding: "There is no doubt that what is happening in this case is a fraudulent activity. This chip was freely for sale so that people were getting something for nothing that they would normally have to pay for."

Carol Whittall was given a conditional discharge and Peter Whittall's sentence was adjourned for pre-sentence reports. He risks a custodial sentence.