British law grappling with legal definition of encryption

A man convicted of fraudulent activities in a case hinging on the meaning of encryption lodged an appeal today. If successful, the legal definition of the word encryption may be redefined.

If he succeeds, cyber criminals including paedophiles, may have a legal loophole through which to escape conviction.

Last month Peter Whittal (60) of Mossey Green, Ketley Bank, Telford was found guilty of making and selling a decoder that enabled customers of Telewest Communications to view cable TV channels for free. Earlier today he was sentenced to 120 hours community service and £1000 costs, but he lodged an appeal against conviction.

He admitted manufacturing and selling the device but argued that he was not breaking the law because the signal sent out by Telewest was not encrypted.

Expert witnesses for both sides were brought in to argue the definition of encryption under the Copyright Designs and Patents Act 1988.

This law states that it is an offence for any person to make, sell or advertise for sale any unauthorised decoder, which is defined in the Act as any apparatus designed or adapted to decode encrypted transmissions.

Whittal was found guilty after the magistrate accepted the encryption definition given by Neil Barrett, expert witness for the prosecution, and technical director for Information Risk Management.

He said he is "concerned about losing the appeal case," but said "from a legal perspective it is better that the definition is tested and, if found wanting, amended now rather than later."

He added, "it is important we have a definition that works so the courts are not inundated by spurious cases later on."

The Telewest signal was found to be encrypted 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.

At present this definition, given by Barrett, is the legal definition. "The judge accepted it, which is great, but it is only one person's definition," he said.