Human rights, encryption and anonymity in a digital age

In his first report to the Human Rights Council, newly appointed Special Rapporteur on freedom of opinion and expression, David Kaye, notes that encryption and anonymity in digital communications deserve strong protection to safeguard individuals’ right to exercise their freedom of opinion and expression.

“We live in a world in which mass and targeted surveillance, digital attacks on individuals and civil society, harassment of members of vulnerable groups, and a wide variety of digital opinion and expression result in serious repercussions, including detention, physical attacks, and even killings,” Kaye says in a statement to the Human Rights Council.

He also stresses that because human communications are evolving deeper into digital form, it should be critically considered that individuals’ right to access information “regardless of frontiers,” as first guaranteed by Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights half a century ago, are being infringed upon with “massive blocking, throttling, and filtering of the internet.”

“I know there are some who may see encryption and anonymity as side issues in the broader canvass of freedom of expression today, but given that so much of our expression today is in the digital space, these security tools must be seen as being at the heart of opinion and expression in a digital age.”

Kaye also points out that encryption and anonymity tools have become vital for journalists, activists, artists, academics and others to exercise their professions and their human rights freely.

The Rapporteur also cautions Governments that are restricting the use of these privacy tools because they fear these will hamper their capacity to fight terrorism and criminality, to compare their gargantuan powers of surveillance and data collection, and use them in proportionality with the rights infringements their methods may cause, and only when necessary.

“Laws, practices and policies that ban, restrict, or otherwise undermine encryption and anonymity – all in the name of public order or counter-terrorism – do significant, and I would say disproportionate, damage to the rights at the heart of my mandate.”

Kaye highlights a few recommendations from his report on how Governments can impose restrictions on anonymity and encryption tools in accordance with human rights law.

When States legitimately need access to encrypted or anonymous information, they should only seek it through judicial process. Kaye also recommends against compelling private companies to install encryption vulnerabilities for Government access, because this would make companies’ digital networks vulnerable to criminal activity or hostile State action. The Rapporteur further recommends that States protect and promote the use of encryption as a matter of digital security.

“Finally, I have to emphasize that the United Nations itself must improve digital security,” he adds. “Individuals around the world, particularly those at risk, are unable to reach the UN in a secure way, and that must change particularly among human rights mechanisms if they are going to be safe spaces for those at risk.”

1 July 2015