A/HRC/29/32
campaigns to educate the public about digital security. Greek law and regulations promote
the effective use of both encryption and anonymity tools. Germany, Ireland and Norway
permit and promote the use of encryption technologies and oppose any efforts to weaken
encryption protocols. Similarly, Swedish and Slovak laws do not restrict the use of
encryption online. The United States of America encourages the use of encryption, and the
United States Congress should further consider a secure data act introduced in the Congress
that would prohibit the Government from requiring companies to weaken product security
or insert back-door access measures. Several Governments fund efforts to share or train in
the use of encryption and anonymity technologies to help individuals evade censorship and
protect their security online, including Canada, the Netherlands, Sweden, the United
Kingdom of Great Britain and Northern Ireland and the United States. In addition, export
regulations should facilitate the transfer of encryption technologies wherever possible.
Although the present report does not provide an overall legal assessment of all national
approaches to encryption, these noted elements — non-restriction or comprehensive
protection, the requirement of court orders for any specific limitation, and public education
— deserve wider application as means to protect and promote the rights to freedom of
opinion and expression.
39.
Nonetheless, the regulation of encryption often fails to meet freedom of expression
standards in two leading respects. First, restrictions have generally not been shown to be
necessary to meet a particular legitimate interest. This is especially the case given the
breadth and depth of other tools, such as traditional policing and intelligence and
transnational cooperation, that may already provide substantial information for specific law
enforcement or other legitimate purposes. Second, they disproportionately impact the rights
to freedom of opinion and expression enjoyed by targeted persons or the general
population.
Bans on encryption for individual use
40.
Outright prohibitions on the individual use of encryption technology
disproportionately restrict the freedom of expression, because they deprive all online users
in a particular jurisdiction of the right to carve out private space for opinion and expression,
without any particular claim of the use of encryption for unlawful ends.
41.
State regulation of encryption may be tantamount to a ban, such as rules
(a) requiring licences for encryption use; (b) setting weak technical standards for
encryption; and (c) controlling the import and export of encryption tools. By limiting
encryption tools to government-approved standards and controlling the import or export of
encryption technologies, States ensure encryption software maintains weaknesses that
allow Governments to access the content of communications. For example, while the law
may be in flux, India has provided that service providers may not deploy “bulk encryption”
on their networks, while the law has also restricted individuals from using encryption
greater than an easily breakable 40-bit key length without prior permission and required
anyone using stronger encryption to provide the Government with a copy of the encryption
keys.26 Reports indicate that encryption products in China may be required to adhere to
government-approved encryption algorithms that have not been peer-reviewed for
security.27 The Pakistan Telecommunication Authority requires prior approval for the use of
26
27
14
Government of India, Ministry of Communications and IT, Licence Agreement for Provision of
Internet Services, (2007). Available from http://dot.gov.in/sites/default/files/
internet-licence-dated%2016-10-2007_0.pdf. See especially sect. 2.2 (vii).
See, e.g., Counter-terrorism Law, art. 15 (initial draft of 8 November 2014). Available from
http://chinalawtranslate.com/en/ctldraft/.
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