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JUNE 5, 2015 - 12:15PM |
BY KATITZA RODRIGUEZ from eff.org
U.N. Special Rapporteur Calls
Upon States to Protect Encryption and Anonymity Online
International Privacy Anonymity Mandatory Data Retention
Last Thursday, David Kaye, the U.N's
newest free speech watchdog, released a groundbreaking report calling
upon states to promote strong encryption and anonymity. Kaye assumed the role of Special
Rapporteur for Freedom of Expression in August 2014, and this,
his first report, will be presented at the 29th regular session of
the United Nations Human Rights Council in Geneva mid-June.
His analysis
comes at a key moment. The ability to communicate anonymously and to use
encryption is more important than ever and the Rapporteur rightly notes that
privacy is a gateway for freedom of opinion and expression, saying:
“Encryption and
anonymity, today’s leading vehicles for online security, provide individuals
with a means to protect their privacy, empowering them to browse, read, develop
and share opinions and information without interference and enabling
journalists, civil society organizations, members of ethnic or religious
groups, those persecuted because of their sexual orientation or gender
identity, activists, scholars, artist and others to exercise the rights to
freedom of expression and opinion.”
We strongly
agree.
Moreover, these critical tools are
increasingly under attack by states around the world, with little understanding
of the human rights consequences. We’ve learned from Edward Snowden about the NSA’s
long-standing systematic effort to sabotage
the encryption used by individuals and businesses around the world. At
the same time, several governments are seeking new powers (or threatening) to
force companies to provide government access to encrypted communications in
their products or services (United Kingdom, United States).
Some states forbid anonymity in
their constitutions (Brazil,
Venezuela); others have attempted to outlaw the use of pseudonyms (Vietnam),
block the use of anonymity tools (Belarus),
require mandatory registration for blogging (Russia),
or compel SIM card and device registration. Yet more have proposed or have
implemented compulsory data retention regimes that can strip anonymity from
most users (Paraguay, Colombia, Mexico,
Australia,
and some European
countries).
While anonymity
and encryption have both been misrepresented solely as a tool for criminal
behavior, the report helps clarify the broad range of essential functions
encryption and anonymity play in a free and democratic society. The
report emphasizes the role they play in a lesser noticed “right to hold
opinions without interference,” noting that this right is absolute, unlike
other rights that may be restricted by law or other power. The Rapporteur
notes, rightly, that people hold their opinions digitally, saving their views
and their search and browse histories, making the link between the absolutely
right to hold opinions and the need to secure the media that hold them. Kaye
also notes the other rights implicated by encryption and anonymity:
“Encryption and
anonymity, and the security concepts behind them, provide the privacy and
security necessary for the exercise of the right to freedom of opinion and
expression in the digital age. Such security may be essential for the exercise
of other rights, including economic rights, privacy, due process, freedom of
peaceful assembly and association, and the right to life and bodily integrity.”
Kaye’s report
recommends that member states:
·
Promote strong encryption and
anonymity. National laws should recognize that individuals are free to protect
the privacy of their digital communications by using encryption technology and
tools that allow anonymity online.
·
Include provisions (legislation and
regulations) enabling access and support to use technologies to secure human
rights defenders and journalist communications.
·
Prohibit restrictions on encryption
and anonymity, which facilitate and often enable the rights to freedom of
opinion and expression. Blanket prohibitions fail to be necessary and
proportionate.
·
Avoid all measures that weaken the
security that individuals may enjoy online, such as backdoors, weak encryption
standards and key escrows. On backdoors he echoes the points raised by the
security community noting that: “a backdoor, even if intended solely for
government access, can be accessed by unauthorized entities, including other
States or non-State actors. Given its widespread and indiscriminate impact,
back-door access would affect, disproportionately, all online users.”
·
Refrain from making the
identification of users a condition for access to digital communications and
online services and requiring SIM card registration for mobile users.
·
Court-ordered decryption, subject to
domestic and international law, may only be permissible when it results from
transparent and publicly accessible laws applied solely on a targeted,
case-by-case basis to individuals (i.e., not to a mass of people) and subject
to judicial warrant and the protection of due process rights of individuals.
Kaye also rejects data retention
mandates, embraces the Manila
Principles on intermediary liability and the 13 Necessary and
Proportionate Principles that EFF helped draft. The
report also call upon companies to:
·
Review their own corporate policies
that restrict encryption and anonymity (including through the use of
pseudonyms).
This is a great
list. With this powerful first report, Special Rapporteur David Kaye
builds upon the legacy of Frank La Rue, the previous rapporteur whose work on
the intersection between privacy and freedom of expression provided important
context to the Snowden leaks in the international human rights community. We
hope countries and companies will adopt Kayes’ recommendations, taking a stand
for strong encryption and anonymous speech instead of constantly working to undermine
them.
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