UN report promotes encryption as fundamental and protected right

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Publication Date: 
June 16, 2015

On Wednesday, Special Rapporteur on freedom of opinion and expression David Kaye will present his report on international legal protection for encryption and anonymity to the United Nations Human Rights Council. The report is an important contribution to the security conversation at a time when some Western leaders are calling for ill-informed and impossible loopholes in technology--a trend that facilitates surveillance and tends to enable states that openly seek to repress journalists.

Ethiopia, which aggressively prosecuted a group known as the "Zone 9" bloggers for participating in email encryption training, is one such state. Authorities there jail more journalists than any other country in Africa, other than Eritrea, and it is the fourth most censored country in the world, according to CPJ research. The Ethiopian government is suspected of conducting widespread surveillance inside the county and of hacking the computers of journalists living overseas.

"In a country like Ethiopia where journalists are consistently watched, [we] need to protect their communications and their data to do reports on sensitive issues," Endalkachew H/Michael, one of the co-founders of Zone 9, told CPJ by email. "If a journalist cannot protect her communication with her sources, she cannot practice journalism."

Michael, who left Ethiopia to study for his doctorate in media studies at the University of Oregon, added: "I believe encryption is a lifeblood for freedom of expression."

In his report, Kaye urged states to promote strong encryption and anonymity through legislation and regulation. The report recommended eschewing restrictions on encryption and anonymity "which facilitate and often enable the rights to freedom of opinion and expression." Kaye said measures by states that weaken security online posed a "serious threat" to freedom of expression, and suggested that some common state practices and proposals were in violation of international law. The report described blanket measures such as encryption backdoors, weak encryption standards, and the holding of encryption keys inescrow as deeply problematic, and concluded that "measures that impose generally applicable restrictions on massive numbers of persons, without a case-by-case assessment," are almost certainly illegal.

In order to satisfy international proportionality principles, the report said, forced decryption by governments must be made on a case-by-case basis, constrained by law, and subject to judicial warrant.

The report went further, acknowledging that state regulation of encryption can be "tantamount to a ban[.]" It condemned the regulatory practices of countries including Pakistan, Cuba, and Ethiopia, noting that they interfered with the right of individuals to encrypt communication. The report supported anonymous and pseudonymous speech, and denounced rules that require users to identify themselves as a precondition to communication. Finally, it urged privately owned companies to refrain from blocking or limiting encrypted communication and to permit anonymous communication.

Read the full post at the Committee to Protect Journalists website