In June 2015, the U.N's free speech watchdog, David Kaye, intends to present a new report on anonymity and encryption before the 47 Member States of the Geneva-based Human Rights Council. Yesterday, EFF filed comments urging Mr. Kaye to reaffirm the freedom to use encryption technology and to protect the right to speak, access and read information anonymously. Mr. Kaye’s report could be one of the most significant opportunities to strengthen our fundamental freedoms in the digital age at the international level.
Mr. Kaye’s official title is “Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.” Special Rapporteurs are independent experts appointed by the Human Rights Council to examine and report back on a specific human rights theme. His mandate is part of the Special Procedures, a central element of the United Nations human rights machinery that contributes to the development of international human rights standards.
In our submission, specifically we urge the Mr. Kaye to include in his report that:
- Anonymity must not be restricted a priori. Strong anonymity, where records are not kept, and where privacy-protecting tools obscure the identity of an individual, should always be available.
- Compelled disclosure must only occur once a legally defined offense has been committed.
- The due process rights of a speaker should be respected before identifying that individual in response to a request to do so.
- Judicial systems, not extrajudicial decision-making processes, are best suited to balance citizens’ right to anonymous expression with the need to provide a mechanism to redress wrongs.
- Legal regimes must ensure rigorous consideration of the free expression and privacy rights of the speaker before compelling any identification.
- In the absence of encryption, online communications can easily be intercepted by anyone, not just the police.
- Individuals and government agencies should all use strong encryption routinely. Our submission warns that the security and anonymity of communications can be undermined by laws that limit the use of privacy-enhancing tools.
- States should defend the individual freedom to use encryption technology and to publish and distribute encryption technologies and research.
- Prohibitions on encryption and the mandatory inclusion of “back doors” in secure software and equipment are dangerous to the security and freedom of all.
- Internet intermediaries should not block or limit the transmission of encrypted communications.
- Internet service providers should be encouraged to design systems for end-to-end encryption.
We also identified some of the world's governments' best and worst policies and practices for the protection of anonymity.
We hope the report reaffirms the fundamental freedoms that allow the Internet's ability to serve as a vehicle for free expression. The past few months have demonstrated a growing movement by some politicians to strip anonymity from Internet users, and outlaw encryption, at the very moment where we have seen the importance (and difficulty) of defending the privacy of digital communications. The Special Rapporteur’s report is the perfect opportunity to speak up in favor of two of the best defenses we have against ubiquitous surveillance, and for a vibrant and free Internet.