CLD Makes Submission on Encryption and Anonymity in Digital Communication


The United Nations Special Rapporteur on Freedom of Opinion and Expression, David Kaye, has received a submission from the Centre for Law and Democracy, a non-governmental organisation based in Canada. The Submission was prepared in response to a call for input by the Special Rapporteur, who is drafting a Report on issues of digital communication to be presented to the Human Rights Council in June 2015.

The submission clearly outlines the importance of encryption and anonymity tools to online speech and sets out five key Principles which would be the focal points of future discussions on these issues. The principles emphasize the pertinent need for transparency around surveillance measures, robust procedural oversight over intelligence and surveillance authorities, controls on the export of advanced surveillance technology to repressive States and the need for surveillance activities to be limited and targeted and, in particular, to strike an appropriate balance between security needs and the rights to freedom of expression and privacy.

The five principles which the submission of CLD outlines include:

  1. States  should  respect  robust  principles  of  transparency  regarding  their  activities in relation  to  anonymity  and  encryption  based  on  the  right  to  information  and  the fact that  secrecy  in  this  area  impacts  on  the  human  rights  to  freedom  of  expression  and privacy.
  2. There  should  be  adequate  oversight  of  digital  surveillance, including  of  the  authorities  that  carry  it out
  3. Actual   surveillance   activities   should   be   limited   and   targeted and  represent   an   appropriate   balance   between   security needs   and   the  rights  to  freedom  of  expression  and  privacy
  4. Structural  measures  which  weaken anonymisation  and encryption   tools  represent serious   restrictions   on   freedom  of expression   and   privacy  and  are  legitimate only  where  justified in  accordance  with  international  standards for limitations on those rights, taking  into  account  the  wider  importance   of  these  tool to the   overall   integrity   of   online  communications and  our shared interest  in  a  secure web.
  5. The  sale  of  intrusive  digital  surveillance  technologies  should be subject  to  a  requirement  to  obtain  an export  licence,  which should  be  denied  where  there  is  a  likelihood  that  the technologies  will  be  used  to  carry  out  human  rights  abuse.

In his comments on the submission, Toby Mendel, the CLD Executive Director said: “We recognise that, in a digital world, digital surveillance is an important tool for law enforcement and intelligence authorities. However, surveillance represents a restriction on freedom of expression and privacy and is therefore legitimate only where it meets strict tests of balance and proportionality.”

The principles explain that to promote free speech and candidness on web, mechanisms have to be put in place to ensure anonymity and encryption which are necessary for the protection of the security of digital communications. However, the three-part test for restrictions found at Article 19(3) of the International Covenant on Civil and Political Rights must be used to assess any restriction on freedom of expression, surveillance policies and practices.