Encryption and anonymity are vital to the protection of freedom of expression and the right to privacy online.[footnote]Article19, Right to Online Anonymity (June 2015), p. 1, (accessible at https:\/\/www.article19.org\/data\/files\/medialibrary\/38006\/Anonymity_and_encryption_report_A5_final-web.pdf).[\/footnote]<\/p>\n\n\n\n
Anonymity can be defined either as acting or communicating without using or presenting one\u2019s name and identity or as acting or communicating in a way that protects the determination of one\u2019s name or identity or using an invented or assumed name that may not necessarily be associated with one\u2019s legal or customary identity.[footnote]Electronic Frontier Foundation, Anonymity and encryption<\/em> (2015) at p. 3 (accessible at https:\/\/www.ohchr.org\/Documents\/Issues\/Opinion\/Communications\/EFF.pdf).[\/footnote]<\/p>\n\n\n\n Anonymity may be distinguished from pseudo-anonymity: the former refers to taking no name at all, whilst the latter refers to taking an assumed name.[footnote]Ibid.<\/em>[\/footnote]<\/p>\n\n\n\n As recognised by different international bodies,[footnote]See Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye <\/em>(22 May 2015), A\/HRC\/29\/32, para 60, (accessible at https:\/\/documents-dds-ny.un.org\/doc\/UNDOC\/GEN\/G15\/095\/85\/PDF\/G1509585.pdf?OpenElement\/); Committee of Ministers of the Council of Europe, Declaration on freedom of communication on the Internet (28 May 2003), (accessible at https:\/\/search.coe.int\/cm\/Pages\/result_details.aspx?ObjectId=09000016805dfbd5).[\/footnote] anonymity is crucial for the exercise of the right to freedom of expression online. The willingness of individuals to engage in public debates online, in particular those on controversial subjects, is closely linked to the possibility of doing so anonymously. In addition, the disclosure of journalistic sources and other protected materials can have negative consequences for freedom of expression. While the ECtHR found that the ECHR does not contain an absolute right to remain anonymous online, it acknowledged that anonymity is a tool of \u201cavoiding reprisals and unwanted attention [and] is capable of promoting the free flow of opinions, ideas and information\u201d.[footnote]ECtHR, Standard Verlagsgesellschaft MBH v. Austria (No. 3), App No. 39378\/15, \u00a776, 7 December 2021; see also ECtHR [GC], Delfi AS v, Estonia<\/em>, App No. 64569\/09, \u00a7147, 16 June 2015.[\/footnote]<\/p>\n\n\n\n Encryption refers to \u201ca mathematical \u2018process of converting messages, information or data into a form unreadable by anyone except the intended recipient\u2019\u201d and, in doing so, \u201cprotects the confidentiality and integrity of the content against third-party access or manipulation.\u201d[footnote]Report of the UNSR on Freedom of Expression, \u2018Report on anonymity, encryption and the human rights framework\u2019, A\/HRC\/29\/32 (2015) at para 7 (accessible at http:\/\/www.ohchr.org\/EN\/Issues\/FreedomOpinion\/Pages\/CallForSubmission.aspx). For further discussion and resources, see UCI Law International Justice Clinic, \u2018Selected references: Unofficial companion report to Report of the Special Rapporteur (A\/HRC\/29\/32) on encryption, anonymity and freedom of expression\u2019 (accessible at http:\/\/www.ohchr.org\/Documents\/Issues\/Opinion\/Communications\/States\/Selected_References_SR_Report.pdf).[\/footnote] With so-called \u201cpublic key encryption\u201d \u2013 the dominant form of end-to-end security for data in transit \u2013 the sender uses the recipient\u2019s public key to encrypt the message and its attachments, and the recipient uses their own private key to decrypt them.[footnote]Ibid.<\/em>[\/footnote] It is also possible to encrypt data at rest that is stored on one\u2019s device, such as a laptop or a hard drive.[footnote]Ibid.<\/em>[\/footnote]<\/p>\n\n\n\n Anonymity and encryption are intrinsically linked to the concepts of privacy and data protection, as they are tools that can be used to protect and advance these rights. In particular, encryption and anonymity have become important ways for political actors, activists, journalists and dissidents to protect their privacy and freedom of expression against specific surveillance tools that access data in transfer. As described by the United Nations Special Rapporteur (UNSR) on freedom of expression:[footnote]Report of the UNSR on Freedom of Expression, \u2018Report on anonymity, encryption and the human rights framework\u2019, A\/HRC\/29\/32 (2015) at para 12 (accessible at http:\/\/www.ohchr.org\/EN\/Issues\/FreedomOpinion\/Pages\/CallForSubmission.aspx).[\/footnote]<\/p>\n\n\n\n \u201cEncryption 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\u2019s gender, religion, ethnicity, national origin or sexuality.\u201d<\/p>\n\n\n\n Encryption and anonymity are essential for the development and sharing of opinions online, particularly in circumstances where persons may be concerned that their communications may be subject to interference or attack by state or non-state actors. They enable individuals to express controversial ideas without fear of reprisal and are of particular importance for whistle-blowers, dissidents and in environments where freedom of expression is heavily censored.[footnote]Article19, Right to Online Anonymity (June 2015), p. 1, (accessible at https:\/\/www.article19.org\/data\/files\/medialibrary\/38006\/Anonymity_and_encryption_report_A5_final-web.pdf).[\/footnote] Encryption and anonymity are therefore specific technologies through which individuals may exercise their rights. The role of encryption as an \u201cenabler of privacy and human rights\u201d has been widely recognised by international bodies and human rights experts.[footnote]Human Rights Council, \u2018The right to privacy in the digital age: Report of the Office of the United Nations High Commissioner for Human Rights\u2019 (2022) A\/HRC\/51\/17 (accessible at https:\/\/daccess-ods.un.org\/access.nsf\/Get?OpenAgent&DS=A\/HRC\/51\/17&Lang=E) at paras 20 and 22, UN High Commissioner for Human Rights, Apple-FBI case could have serious global ramifications for human rights (3 March 2016), (accessible at https:\/\/www.ohchr.org\/en\/press-releases\/2016\/03\/apple-fbi-case-could-have-serious-global-ramifications-human-rights-zeid); see also: UN General Assembly, Resolution 75\/176: The right to privacy in the digital age (16 December 2020), A\/RES\/75\/176; Human Rights Council, Resolution 39\/6: The safety of journalists 27 September 2018), A\/HRC\/RES\/39\/6; Human Rights Council, Resolution 45\/18: The safety of journalists (12 October 2020), A\/HRC\/RES\/45\/18; Human Rights Council, Resolution 48\/4: The right to privacy in the digital age (13 October 2021), A\/HRC\/RES\/48\/4[\/footnote] Accordingly, restrictions on encryption and anonymity must meet the three-part test in order to be justifiable.<\/p>\n\n\n\n With concern, the Office of the UN High Commissioner for Human Rights (OHCHR) notes that in recent years, governments have increasingly taken steps to undermine the security and confidentiality of encrypted communications, stressing its importance for people to safely holding, expressing, and exchanging opinions.[footnote]Human Rights Council, \u2018The right to privacy in the digital age: Report of the Office of the United Nations High Commissioner for Human Rights\u2019 (2022) A\/HRC\/51\/17 (accessible at https:\/\/daccess-ods.un.org\/access.nsf\/Get?OpenAgent&DS=A\/HRC\/51\/17&Lang=E) at para 21.[\/footnote] In particular, the OHCHR highlights that the essential role of encryption for journalists, human rights defenders, women and civilians in armed conflict.[footnote]Ibid.[\/footnote]<\/p>\n\n\n\n According to the UNSR on freedom of expression, while encryption and anonymity may frustrate law enforcement and counter-terrorism officials and complicate surveillance, state authorities have generally failed to provide appropriate public safety justification to support the restriction or to identify situations where the restriction has been necessary to achieve a legitimate goal.[footnote]Report of the UNSR on Freedom of Expression, \u2018Report on anonymity, encryption and the human rights framework\u2019, A\/HRC\/29\/32 (2015) at para 36 (accessible at http:\/\/www.ohchr.org\/EN\/Issues\/FreedomOpinion\/Pages\/CallForSubmission.aspx).[\/footnote] Outright prohibitions on the individual use of encryption technology disproportionally restrict the right to freedom of expression as it deprives all online users in a particular jurisdiction of the right to carve out a space for opinions and expression, without any particular claim of the use of encryption being for unlawful ends.[footnote]Ibid<\/em> para 40.[\/footnote] Likewise, state regulation of encryption may be tantamount to a ban, for example through requiring licences for encryption use, setting weak technical standards for encryption or controlling the import and export of encryption tools.[footnote]Ibid<\/em> para 41.[\/footnote]<\/p>\n\n\n\n The UNSR on freedom of expression has called on states to promote strong encryption and anonymity and noted that decryption orders should only be permissible when they result from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals (not to a mass of people), and subject to a judicial warrant and the protection of due process rights of individuals.[footnote]Report of the UNSR on Freedom of Expression, \u2018Report on anonymity, encryption and the human rights framework\u2019, A\/HRC\/29\/32 (2015) at paras 59-60 (accessible at http:\/\/www.ohchr.org\/EN\/Issues\/FreedomOpinion\/Pages\/CallForSubmission.aspx).[\/footnote] Likewise, the OHCHR has echoed these calls by recommending that States avoid all direct, or indirect, general and indiscriminate restrictions on the use of encryption, target individuals only when authorised by an independent juridical body on a case-by-case basis, and only when strictly necessary for the investigation or prevention of serious crimes.[footnote]Human Rights Council, \u2018The right to privacy in the digital age: Report of the Office of the United Nations High Commissioner for Human Rights\u2019 (2022) A\/HRC\/51\/17 (accessible at https:\/\/daccess-ods.un.org\/access.nsf\/Get?OpenAgent&DS=A\/HRC\/51\/17&Lang=E) at pp.16-17.[\/footnote]<\/p>\n\n\n\n Various EU institutions have stressed the importance of encrypted communications. For instance, in 2020 the Council of the European Union drafted a resolution on encryption noting that:<\/p>\n\n\n\n \u201cThe European Union fully supports the development, implementation and use of strong encryption. The European Union underlines the need to ensure full respect for fundamental and human rights and the rule of law in all actions relating to this resolution, online as well as offline. Encryption is a necessary means of protecting fundamental rights and the digital security of governments, industry and society. At the same time, the European Union needs to ensure the ability of competent authorities in the area of security and criminal justice, e.g. law enforcement and judicial authorities, to exercise their lawful powers, both online and offline protecting our societies and citizens.\u201d[footnote]Council of the European Union, \u2018Council Resolution on Encryption: Security through encryption and security despite encryption\u2019 (2020) 13084\/1\/20 REV 1 (accessible at https:\/\/data.consilium.europa.eu\/doc\/document\/ST-13084-2020-REV-1\/en\/pdf) at p. 2.[\/footnote]<\/p>\n<\/blockquote>\n\n\n\nInternational Context<\/strong><\/h2>\n\n\n\n
Regional Context: European Union<\/strong><\/h2>\n\n\n\n
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