March 2, 2015
Around the world, the debate about the value of encryption and the role of anonymity in online communications is heating up. That’s why, when David Kaye, the UN Special Rapporteur on freedom of expression and opinion, announced earlier this year that his 2015 report to the UN Human Rights Council would focus on the relationship between freedom of expression and encryption, a large number of human rights organizations and advocacy groups prepared submissions on the topic. The Open Technology Institute’s submission focused on the lessons from the 1990s “Crypto Wars” in the United States and why we think access to encryption is fundamental to protect rights like free speech and privacy in the digital age. But other organizations explored different elements of this important topic, writing about international and intergovernmental norms around encryption, the importance of anonymity online, and the impact of these tools on vulnerable communities around the world. Below are some of the highlights from those submissions.
American Civil Liberties Union
Similar to OTI, the American Civil Liberties Union situated its comments in the context of recent government pressure on Internet companies to weaken or remove encryption in their products, particularly as these companies have taken steps to increase the security of their users’ data in the aftermath of the Snowden leaks. The ACLU argues that “encryption and anonymity are modern safeguards for free expression,” as they prevent online communications from being intercepted and reviewed in bulk, and that encryption is essential to cybersecurity and is actually the best defense against cyber-attacks. As a result, any attempts to undermine or deliberately weaken encryption would effectively prioritize surveillance capabilities at the expense of demonstrated benefits to security and free speech.
Center for Democracy & Technology
The Center for Democracy and Technology’s comments emphasize that, in addition to governments’ responsibility to protect their citizens, businesses also have an independent responsibility to support human rights. They point out that Internet intermediaries (e.g. network operators, websites, and remote storage providers) wield significant power over consumers’ private information and can either protect that data using strong encryption or allow the government access to it through surveillance backdoors. If intermediaries decide to give the government access, it can have a chilling effect on freedom of expression and the free flow of information online, making individuals hesitant to talk about, search for, or read sensitive or controversial material. Particularly in situations where people might face reprisal for what they do or say, encryption is essential to protect their individual freedoms. By encrypting data, intermediaries have the power to protect the safety and freedom of all users — and governments should not interfere with those efforts.
Electronic Frontier Foundation
The Electronic Frontier Foundation’s comments highlight how anonymity is vital to a free and open society, and explain how encryption can enable secure anonymous communications. Looking at examples from around the world, EFF’s submission focuses on the role of anonymity in facilitating freedom of expression, privacy, and the freedom to seek information. By limiting the use of anonymity tools in digital communications, governments threaten actors like human rights activists, journalists, refugees, bloggers, and whistleblowers, making it more difficult for them to speak confidentially and freely without retribution. Anonymity is essential for privacy and human rights and EFF recommends that neither governments nor corporations undermine that anonymity by restricting the use of encryption.
Access and the PEN American Center
A joint submission from Access and the PEN American Center argues that “the exercise of anonymity, pseudonymity, and encryption should be protected under the same human rights standards as the rights to free expression and privacy that they enable.” Their discussion draws upon the findings of two recent surveys published by PEN after the Snowden leaks, both of which clearly demonstrate the chilling effects of mass surveillance on free expression. They also highlight domestic and international legal precedents that recognize anonymity as an element of the right to privacy, both offline and online. They conclude that the “promotion of encryption is not anti-law enforcement, it is pro-user,” and that restrictions on the right to use anonymity and encryption tools should be seen as restrictions on the right to privacy and free expression themselves.
In its comments, Article 19 — an organization named after the Universal Declaration of Human Rights article that expresses the right to freedom of expression and opinion — focuses on the international dimension of the issue, examining existing laws and precedents regarding anonymity and encryption. Using examples from China, the EU, the United States, and Egypt, the submission explores how the use of encryption is being legislated by both national and intergovernmental actors. For example, the OECD Guidelines for Cryptography Policy stress the fundamental importance of cryptography in the protection of privacy and information security. Article 19 argues that domestic and international law should protect freedom of expression, and that encryption bans or backdoor mandates constitute a serious interference with fundamental rights.
Human Rights Watch
Human Rights Watch focuses its submission on how a lack of encryption disproportionately impacts vulnerable groups like journalists, human rights activists, civil society organizations, and persecuted minority groups. Digital surveillance can threaten the privacy, freedom of expression, and physical safety of these individuals, while encryption affords them some modicum of protection. As they explain, “The issue isn’t whether banning or weakening encryption would be useful to security agencies, but whether such a radical measure could justify undermining the privacy rights of everyone who uses or may use encrypted services to protect digital communications. Evidence provided to date suggests that this threshold has not been met.” HRW’s comments draw upon specific examples from countries like Ethiopia and China as well as global trends related to SIM card registration and government requests for surveillance backdoors to support the conclusion that the ability to encrypt communications and protect anonymity is crucial to protecting everyone — especially the most vulnerable — from the chilling effects of surveillance.
Citizen Lab and Collin Anderson
Joint comments from the Citizen Lab and independent researcher Collin Anderson similarly focus on how limitations on encryption threaten a particular group: vulnerable civil society actors, who are often the target of increased surveillance, censorship, and digital attacks by oppressive governments. By looking at the unique needs of these organizations, this submission highlights the ways that cryptographic tools — which are essential for secure messaging and voice-over-IP software, virtual private networks, and anonymization services — support their ability to work effectively. As a result, any attempts to legislate against or subvert encryption standards put these groups at even greater risk. The comments build on previous Citizen Lab research about the persistent digital threats faced by civil society.
A number of other groups also submitted comments to the UN Special Rapporteur, and you can find many of these public submissions here. Although they vary in focus, several common themes emerged among nearly all of the submissions we reviewed, including the critical importance of access to encryption and concerns that the negative human rights impact of weakening encryption or requiring surveillance backdoors far outweighs any purported benefits to security. It’s also clear that as the domestic debate in the United States continues, it can influence how similar discussions play out in countries all over the world, which is why we believe the U.S. should lead the way in promoting, rather than undermining, strong encryption technology in order to promote free expression and privacy. David Kaye is expected to present his final report on the relationship between encryption and free expression to the Human Rights Council in June, and as he suggested in a recent interview with the Columbia Journalism Review, “he hopes to do for encryption what a report by his predecessor at the UN, released about a month before the first Snowden revelations, did for the understanding of mass surveillance.” We look forward to reading it.