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UN: Encrypted messaging is a ‘human right’

Report by David Kaye cites the International Covenant on Civil and Political Rights.


The ongoing debate on encrypted communications has been rocked again by a UN report that argues that encrypted communications and online anonymity are essential to protecting freedom of expression.

Penned by David Kaye, a special rapporteur in the UN’s Human Rights Council, the report argues that states should respect the privacy of citizens, stating that the right to freedom of expression is an inviolable human right.

Kaye argues that encryption emerged as a necessary response to government abilities to spy on citizens.

"Contemporary digital technologies offer Governments, corporations, criminals and pranksters unprecedented capacity to interfere with the rights to freedom of opinion and expression.

"Online censorship, mass and targeted surveillance and data collection, digital attacks on civil society and repression resulting from online expression force individuals around the world to seek security to hold opinions without interference and seek, receive and impart information and ideas of all kinds.

"Many seek to protect their security through encryption, the scrambling of data so only intended recipients may access it, which may be applied to data in transit (e.g., e-mail, messaging, Internet telephony) and at rest (e.g., hard drives, cloud services)."

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Kaye cites article 17 of the International Covenant on Civil and Political Rights as protecting individuals against interference with their privacy. He then argues that privacy has been recognised as a "gateway" to these rights by the General Assembly, the United Nations High Commissioner for Human Rights and special procedure mandate holders.

The paper explicitly contradicts arguments from politicians that the dangers posed by terrorism can justify compromising citizens’ privacy.
"Law enforcement and intelligence services often assert that anonymous or encrypted communications make it difficult to investigate financial crimes, illicit drugs, child pornography and terrorism."

Kaye adds: "Discussions of encryption and anonymity have all too often focused only on their potential use for criminal purposes in times of terrorism. But emergency situations do not relieve States of the obligation to ensure respect for international human rights law."

In the conclusion to the report, Kaye states, "Encryption and anonymity, and the security concepts behind them, provide the privacy and security necessary for the exercise of the right to freedom of opinion and expression in the digital age."

Encryption, used in services such as WhatsApp, uses a complex algorithm to scramble a message before sending it on, with the receiver able to decode it using the same key. Anonymity is deployed in applications including Tinder and also through browsers such as Tor.

The report may impact discussion in the UK, as David Cameron’s new Conservative government is expected to address encryption in upcoming laws, with the recent Queen’s Speech citing this as a priority. The Data Communications Bill, aimed to increase government surveillance powers in the digital sphere, was blocked by the Liberal Democrats during the 2010-2015 Coalition Government.

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