Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

5 October 2015

By David Kaye

The present report examines two linked questions. First, do the rights to privacy and freedom of opinion and expression protect secure online communication, specifically by encryption or anonymity? And, second, assuming an affirmative answer, to what extent may governments, in accordance with human rights law, impose restrictions on encryption and anonymity? It seeks to answer these questions, review examples of State practice and propose recommendations.

The Special Rapporteur considers that “Encryption and anonymity, separately or together, create a zone of privacy to protect opinion and belief. For instance, they enable private communications and can shield an opinion from outside scrutiny, particularly important in hostile political, social, religious and legal environments. Where States impose unlawful censorship through filtering and other technologies, the use of encryption and anonymity may empower individuals to circumvent barriers and access information and ideas without the intrusion of authorities. Journalists, researchers, lawyers and civil society rely on encryption and anonymity to shield themselves (and their sources, clients and partners) from surveillance and harassment. The ability to search the web, develop ideas and communicate securely may be the only way in which many can explore basic aspects of identity, such as one’s gender, religion, ethnicity, national origin or sexuality”.

The report considers that “the human rights legal framework for encryption and anonymity requires, first, evaluating the scope of the rights at issue and their application to encryption and anonymity; and, second, assessing whether, and if so to what extent, restrictions may lawfully be placed on the use of technologies that promote and protect the rights to privacy and freedom of opinion and expression”.

Contents

I. Introduction

II. Secure and private communication in the digital age

A. Contemporary encryption and anonymity B. Uses of the technologies

III. Encryption, anonymity and the rights to freedom of opinion and expression and privacy

A. Privacy as a gateway for freedom of opinion and expression B. Right to hold opinions without interference C. Right to freedom of expression D. Roles of corporations

IV. Evaluating restrictions on encryption and anonymity

A. Legal framework B. State practice: examples and concerns

V. Conclusions and recommendations

A. States B. International organizations, private sector and civil society
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