UN Report on Use of Encryption and Anonymity in Digital Communications

On 22 May 2015, the United Nation's "Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression", David Kaye, made available his first annual Report adressing the use of encryption and anonymity in digital communications. Drawing from research on international and national norms and jurisprudence, and the input of States and civil society, the Report concludes that encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection. The Report will be presented at the 29th session of the Human Rights Council on 15 June - 3 July 2015.

Approach

In his first Report to the Human Rights Council, the Special Rapporteur addresses two linked questions:

• First, do the rights to privacy and freedom of opinion and expression protect secure online communication, specifically by encryption or anonymity?
• Second, assuming an affirmative answer, to what extent may governments, consistent with human rights law, impose restrictionson encryption and anonymity? The report seeks to answer these questions, review examples of State practice, and propose recommendations.

In preparing this study, the Special Rapporteur circulated a questionnaire to States, seeking relevant information on their domestic laws, regulations, policies or practices. As of 01 April, sixteen States had responded to this request. The Special Rapporteur also issued a call for submissions from non-governmental stakeholders and convened an experts meeting in Geneva in March 2015. The responses from Governments and the submissions by civil society organizations and individuals contributed significantly to the preparation of this report.

Conclusions

"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. Because of their importance to the rights to freedom of opinion and expression, restrictions on encryption and anonymity must be strictly limited according to principles of legality, necessity, proportionality and legitimacy in objective." (Human Rights Council, A/HRC/29/32, page 19 para 56)

In the light of this, the Report issues 4 recommendations for States and 3 recommendations for international organizations, private sector and civil society:

Recommendations for States:

• National Legislation:
  "States should revise or establish, as appropriate, national laws and regulations to promote and protect the rights to privacy and freedom of opinion and expression. (...)"
  (Human Rights Council, A/HRC/29/32, page 19 para 57)
    
• National Debate and Legislative Procedure:
  "(...) emergency situations do not relieve States of the obligation to ensure respect for international human rights law. Legislative proposals for the revision or adoption of restrictions on individual security online should be subject to public debate and adopted according to regular, public, informed and transparent legislative process. States must promote effective participation of a wide variety of civil society actors and minority groups in such debate and processes and avoid adopting such legislation under accelerated legislative procedures. (...)"
  (Human Rights Council, A/HRC/29/32, page 19 para 58)
    
• Promotion by the State:
  "States should 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. (...)"
  (Human Rights Council, A/HRC/29/32, page 20 para 59)
    
• No Restriction to Encryption and Anonymity:
  "(...) States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows. In addition, States should 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. (...)"
  (Human Rights Council, A/HRC/29/32, page 20 para 60)

Recommendations for International Organizations, Private Sector and Civil Society:

• Promotion of Online Security:
  "(..) The Special Rapporteur urgently calls upon entities of the United Nations system, especially those involved in human rights and humanitarian protection, to support the use of communication security tools in order to ensure that those who interact with them may do so securely. United Nations entities must revise their communication practices and tools and invest resources in enhancing security and confidentiality for the multiple stakeholders interacting with the Organization through digital communications. (...)"
  (Human Rights Council, A/HRC/29/32, page 20 para 61)
    
• Corporate Practices:
  "(...) At a minimum, companies should adhere to principles such as those laid out in the Guiding Principles on Business and Human Rights, the Global Network Initiative’s Principles on Freedom of Expression and Privacy, the European Commission’s ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights, and the Telecommunications Industry Dialogue Guiding Principles. Companies, like States, should refrain from blocking or limiting the transmission of encrypted communications and permit anonymous communication. (...)"
  (Human Rights Council, A/HRC/29/32, page 20 para 62)
    
• Encouraging the Use of Encryption and Anonymity Tools:
  "(...) The Special Rapporteur, recognizing that the value of encryption and anonymity tools depends on their widespread adoption, encourages States, civil society organizations and corporations to engage in a campaign to bring encryption by design and default to users around the world and, where necessary, to ensure that users at risk be provided the tools to exercise their right to freedom of opinion and expression securely. (...)"
  (Human Rights Council, A/HRC/29/32, page 20 para 63)

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Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, to the UN Human Rights Council, A/HRC/29/32, 22 May 2015

"Selected References: Unofficial Companion to Report of the Special Rapporteur (A/HRC/29/32) on Encryption, Anonymity and the Freedom of Expression" by UCI Law International Justice Clinic

UN Human Rights, "Report on encryption, anonymity, and the human rights framework" with links to download the submissions reviewed for this Report

List of documents for the 29th session of the UN Human Rights Council