A new report by David Kaye, UN Special Rapporteur on freedom of expression, makes it absolutely clear that attempts by governments to gain backdoor access to people's communications or to intentionally weaken encryption standards violate international law.
This statement was originally published on article19.org on 28 May 2015.
Today [28 May], David Kaye, the UN Special Rapporteur on freedom of expression published a major report on encryption and anonymity in the digital age. ARTICLE 19 welcomes the report as a major step forward for the protection of the rights to free expression and privacy online. We call on governments to review their laws, policies and practices and bring them in line with the Special Rapporteur’s recommendations as soon as possible.
“The report marks an important milestone in the protection of freedom of expression and the right to privacy online. As the UK government just announced its plans for increasing surveillance powers, the UN top free expression watchdog has sharply rebuked Prime Minister Cameron’s earlier promises to ban encryption,” said Thomas Hughes, Executive Director of ARTICLE 19.
“The UN report makes it absolutely clear that attempts by governments to gain backdoor access to people’s communications or to intentionally weaken encryption standards violate international law. It is vital that States review their relevant laws, policies and practices on anonymity and encryption, to ensure that they protect people’s rights to free expression and privacy online,” he added.
ARTICLE 19 submitted a response to UN Special Rapporteur’s Call for Comments on Encryption and Anonymity earlier this year, and noted that where anonymity is not protected, and the use of encryption is compromised, the exercise of fundamental rights is at risk. Anyone who wants to express their opinions online should be able to do so anonymously, to ensure freedom from harassment or reprisal; it is also essential for journalists protecting their sources, and for whistleblowers uncovering wrongdoing.
ARTICLE 19 welcomes the ground breaking report’s recommendations, which also reflect our own views on these issues, particularly the recognition that:
- Encryption and anonymity are vital enablers of freedom of opinion and expression: the Special Rapporteur made it clear that an open and secure Internet should be counted among the leading prerequisites for the enjoyment of freedom of expression today, and must therefore be protected by governments. Encryption and anonymity must be strongly protected and promoted because they provide the privacy and security necessary for the meaningful exercise of the right to freedom of expression and opinion in the digital age (see paras.12, 16, 56).
- Anonymous speech is necessary for human rights defenders, journalists, and protesters: in particular, the Special Rapporteur highlighted that attempts to ban or intercept anonymous communications in times of protest was an unjustified restriction on the right to freedom of peaceful assembly under the Universal Declaration and the International Covenant on Civil and Political Rights (para. 53). He also recommended that legislation and regulations protecting human rights defenders and journalists should include provisions enabling access and providing support to use the technologies to secure their communications.
- Restrictions on encryption and anonymity must meet the three-part test: in particular, the Special Rapporteur stressed that draft laws and policies providing for restrictions on encryption or anonymity should be subject to public comment and only be adopted following a regular – rather than fast track – legislative process. He also emphasised that strong procedural and judicial safeguards should be applied to guarantee the due process rights of any individual whose use of encryption or anonymity is subject to restriction (paras. 31-35).
- Blanket bans on the individual use of encryption technology disproportionately restrict the right to freedom of expression: he also noted that rules (a) requiring licenses for encryption use; (b) setting weak technical standards for encryption; and (c) controlling the import and export of encryption tools were tantamount to a blanket ban and therefore a disproportionate restriction on freedom of expression (paras. 40-41).
- Government backdoor access to peoples communications, key escrow systems (allowing for potential third party access to encryption keys), and the intentional weakening of encryption standards are disproportionate restrictions on the rights to freedom of expression and privacy. In particular, the Special Rapporteur highlighted that governments proposing back-door access had not demonstrated that criminal or terrorist use of encryption serves as an insurmountable obstacle to law enforcement objectives. Under international law, States were required to demonstrate, publicly and transparently, that other less intrusive means (such as wiretaps, physical surveillance and many others) were unavailable or had failed, and that only broadly intrusive measures, such as backdoors, would achieve the legitimate aim. Key escrow systems were also a threat to the secure exercise of the right to freedom of expression because of the vulnerabilities inherent in third parties being trusted to keep encryption keys secure, or being required to hand them over to others (paras 36, 42-44).
- Blanket prohibitions on anonymity online and compulsory real-name or SIM card registration go well beyond what is permissible under international law: on the contrary, the UN Special Rapporteur noted that because anonymity facilitates opinion and expression in significant ways online, States should protect it and generally not restrict the technologies that provide it (paras. 49-51).
- Imposing intermediary liability for anonymous comments undermine the right to free expression online: in particular, the Special Rapporteur noted that the recently adopted Manila Principles on Intermediary Liability – an initiative spearheaded by ARTICLE 19, EFF, CIS India, Derechos Digitales and Open Net Korea among others – provided a sound set of guidelines for States and international and regional mechanisms to protect expression online (para. 54)
The report further acknowledges the role of corporate actors in protecting and promoting strong encryption standards. In particular, companies are invited to consider their own policies that restrict encryption and anonymity.
The report will formally be presented to the UN Human Rights Council during its 29th Session in Geneva on 17 June 2015, when States will have the opportunity to discuss the findings and recommendations with the Special Rapporteur. ARTICLE 19 encourages States to proactively engage in this UN debate, outlining what laws, policies, and practices they would need to change to fully protect freedom of expression and privacy online.
The report also provides a strong basis for future Human Rights Council action, as well as for further study and recommendations in this area, including by the new mandate-holder of UN Special Rapporteur on the right to privacy, who will be appointed at the Human Rights Council’s 29th Session.
ARTICLE 19 congratulates David Kaye on his first report to the Human Rights Council, and looks forward to working with him over the coming months and years.
