In February 2015, ARTICLE 19 responded to the UN Special Rapporteur on Freedom of Expression’s call for comments on anonymity and encryption.
The UN free speech watchdog, Mr David Kaye, will present a report on anonymity and encryption to the UN Human Rights Council in June 2015. While anonymity and encryption are not new phenomena, several Western governments have recently called for measures that would severely curtail the right to freedom of expression and privacy online. In the aftermath of the Charlie Hebdo attacks, the UK Prime Minister David Cameron called for a crackdown on encryption, while the French government is looking into ways to enhance surveillance on the Internet. The protection of anonymity and encryption as a matter of international law is therefore more important than ever.
In our submission, we seek to define the concepts of anonymity and encryption, and their implications for the right to freedom of expression in the digital age. We further identify the ways in which anonymity and encryption are protected as a matter of international law. We also outline best practices from around the world as well as problematic laws and practices in relation to those issues. We conclude by setting out our preliminary conclusions as to how best to protect anonymity and encryption.
In particular, we recommend that the UN Special Rapporteur should:
- Explicitly affirm that the right to freedom of expression includes the right to anonymity;
- Elaborate the right to anonymity and hold that it includes the right to anonymous speech, the right to read anonymously, and the right to browse online anonymously.
- Reaffirm that real-name registration systems imposed by governments constitute a violation of the rights to freedom of expression and privacy;
- Recommend that only the courts – rather than law enforcement agencies – should have the power to order that anonymity be lifted.
- Recommend that companies consider the implications of real-name registration policies for freedom of expression and the right to privacy. At a minimum, companies with a real-name registration policy should allow anonymity in appropriate cases.
- Promote the use of tools such as Tor and https:// protocols that allow anonymous browsing.
- Affirm that encryption is a basic requirement for the protection of the confidentiality of information and its security and that as such, it is essential to the protection of the right to freedom of expression online;
- Call on governments
- to refrain from measures requiring or promoting technical backdoors to be installed in hardware and software encryption products;
- to repeal laws banning the use of encrypted products, particularly by end-users;
- to repeal laws requiring government authorisation for the use of encrypted products;
- to put programmes in place for the promotion of encryption in internet communication;
- to promote end-to-end encryption as the basic standard for the protection of the right to privacy online;
- to promote the use of open source software;
- to invest in open source software to ensure that it is regularly and independently maintained and audited for vulnerabilities;
- to lift undue import/export restrictions on encryption hardware and software;
- Call on companies to refrain from weakening technical standards and to roll out the provision of services with strong end-to-end encryption.
To read the full submission, please download the full PDF below.