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:
- 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.
- There should be adequate oversight of digital surveillance, including of the authorities that carry it out
- 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
- 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.
- 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.
