Encryption

Updates

18 Nov 2016

The new surveillance law passed in the UK brings expansion of surveillance powers for the government. According to the new law, the Internet Service Providers will be required to store the browsing histories of all the Internet users for one year and make them available upon the request by the court, companies providing online services will be required to decrypt user data on demand, while security services will be allowed to hack into computers and devices of citizens - though journalists and medical workers will remain protected from this. According to ZDNet, Digital rights organisations have raised serious concerns about the enacted law - dubbed "snooper charter" - characterizing it as terrifying and dangerous. The draft law was already marked as disproportionate by UN rapporteur on privacy Joseph A. Cannataci in his report on the state of privacy in 2016.

15 Nov 2016

Forty U.S. Internet companies, including Amazon, Facebook, Google, and Twitter, have sent a letter to President-elect Donald Trump with a list of policy priorities, under the banner of the Internet Association. The policy priorities include 'promoting strong encryption, immigration reform, and maintaining liability protections from content that users share on their platforms'. Some of the proposals might align with Trump's priorities, such as 'easing regulation on the sharing economy, lowering taxes on profits made from intellectual property, and applying pressure on Europe to not erect too many barriers.' Others might clash with Trump's vision, such as upholding reforms to surveillance programmes and maintaining net neutrality rules. According to the letter, 'the internet industry looks forward to engaging in an open and productive dialogue'.

14 Nov 2016

For the sixth consecutive year, Internet freedom has declined. Of the 65 countries assessed, 34 have been on a negative trajectory since last year. That is the conclusion of this year's Freedom on the Net report, which was presented by Freedom House in Washington DC. The report assesses the government involvement in targeting social media and communication apps. The messaging and voice communication apps targeting presents a new trend. The Report looks, besides other topics, into the unprecedented penalties that social media users face, the more diverse content governments censor, security measures that threaten free speech and privacy, and online activism in general.

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Encryption refers to the scrambling of electronic documents and communication into an unreadable format which can be read only through the use of encryption software. Traditionally, governments were the only players who had the power and the know-how to develop and deploy powerful encryption in their military and diplomatic communications. With user-friendly packages, encryption has become affordable for any Internet users, including criminals and terrorists. This triggered many governance issues related to finding the right balance between the need to respect privacy of communication of Internet users and the need for governments to monitor some types of communication of relevance for the national security (potential criminal and terrorist activity remains an issue).

 

 

International regimes for encryption tools

The international aspects of encryption policy are relevant to the discussion of Internet governance inasmuch as its regulation should be global, or at least, involve those countries capable of producing encryption tools. For example, the US policy of export control of encryption software was not very successful because it could not control international distribution. US software companies initiated a strong lobbying campaign arguing that export controls do not increase national security, but rather undermine US business interests.

Encryption has been tackled in two contexts: the Wassenaar Arrangement and the OECD. The Wassenaar Arrangement is an international regime adopted by 41 countries to restrict the export of conventional weapons and ‘dual use’ technologies to countries at war or considered to be ‘pariah states’. The arrangement established a secretariat in Vienna. US lobbying, with the Wassenaar Group, aimed at extending the Clipper Approach internationally, by controlling encryption software through a key escrow. This was resisted by many countries, especially Japan and the Scandinavian countries.

A compromise was reached in 1998 through the introduction of cryptography guidelines, which included dual-use control list hardware and software cryptography products above 56 bits. This extension included Internet tools, such as Web browsers and e-mail. It is interesting to note that this arrangement does not cover ‘intangible’ transfers, such as downloading. The failure to introduce an international version of Clipper contributed to the withdrawal of this proposal internally in the USA itself. In this example of the link between national and international arenas, international developments had a decisive impact on national ones.

The OECD is another forum for international cooperation. Although the OECD does not produce legally binding documents, its guidelines on various issues are highly respected. They are the result of an expert approach and a consensus-based decision-making process. Most of its guidelines are eventually incorporated into national laws. The question of encryption was a highly controversial topic in OECD activities. It was initiated in 1996 with a US proposal for the adoption of a key escrow as an international standard. Similar to Wassenaar, negotiations on the US proposal to adopt a key escrow with international standards were strongly opposed by Japan and the Scandinavian countries. The result was a compromise specification of the main policy elements.

A few attempts to develop an international regime, mainly within the context of the Wassenaar Arrangement, did not result in the development of an effective international regime. It is still possible to obtain powerful software on the Internet.

Encryption and human rights

In recent years, the Snowden revelations that disclosed the use of surveillance programs by the United States National Security Agency (NSA), subsequent revelations of surveillance carried out in various other countries, and a rise in cybercrime and terrorism, have placed encryption and human rights into sharper focus. The debate on an international regulatory framework for encryption has also shifted in the same direction.

The issues are various and complex. From a security standpoint, governments have reiterated the need to access encrypted data with the aim of preventing crime and ensuring public safety. Revelations have revealed backdoors into encrypted software and products, putting pressure on Internet and tech companies to allow governments access to data. From a human rights standpoint, the right to privacy and other human rights should be protected, and encryption tools – including pervasive encryption – are essential to protect privacy. The need for greater protection for encryption and anonymity was in fact highlighted in the UN Special Rapporteur's report (2015) to the Human Rights Council.

More recently, these arguments were vividly discussed and illustrated during the 10th IGF in Brazil in 2015, and the 11th IGF in Mexico in 2016. Various approaches were identified, including encryption by default, prohibition of backdoors (also due to the fact that backdoors could make encrypted files vulnerable to criminals), stronger data retention rules, and importantly, an international framework. The view that encryption (and anonymity) is inherently linked to security and economic prospects was also discussed in depth.

Events

Instruments

Conventions

Link to: Convention on Cybercrime (Budapest Convention) - Encryption in mutual legal assistance (2001)

Resolutions & Declarations

Universal Declaration of Human Rights (1948)

Standards

Request for Comments (RFC) dealing with Encryption (2015)

Recommendations

Other Instruments

Resources

Articles

Apple vs FBI: A Socratic Dialogue on Privacy and Security (2016)
Silicon Valley Should Join the War on Terrorism (2016)

Publications

Internet Governance Acronym Glossary (2015)
Securing Safe Spaces - Online Encryption, online anonymity, and human rights (2015)
An Introduction to Internet Governance (2014)

Papers

Expert and Non-Expert Attitudes towards (Secure) Instant Messaging (2016)
Analyzing HTTPS Encrypted Traffic to Identify User’s Operating System, Browser and Application (2016)
A Worldwide Survey of Encryption Products (2016)
On the Free Use of Cryptographic Tools for (Self)protection of EU Citizens (2016)

Reports

One Internet (2016)
Encryption: A Matter of Human Rights (2016)
Don't Panic: Making Progress on the "Going Dark" Debate (2016)
2016 Global Encryption Trends Study (2016)
Stocktaking, Analysis and Recommendations on the Protection of CIIs (2016)
The State of Encryption Today (2016)
The Global Risks Report 2016 (2016)
Freedom on the Net 2015 (2015)
OECD Digital Economy Outlook 2015 (2015)
Global Cybersecurity Index & Cyberwellness Profiles (2015)

Other resources

WhatsApp Encryption Overview (2016)
Security for All: An Open Letter to the Leaders of the World's Governments (2016)
HTTPS on Top Sites
HTTPS at Google

Processes

During Encryption and Anonymity: Rights and Risks (WS 155), panellists discussed the pros and cons of legislation on encryption, and considered the implications of two jurisdictional cases on anonymity and encryption. While greater protection for encryption and anonymity online is required, encryption needs to be viewed as more closely related to security, rather than a purely economic issue.

 

Encryption was compared to antibiotics, in Law Enforcement in a World of Pervasive Encryption (WS 141): we do not know if they will work but we need to trust that they will. Pervasive encryption could become a reality within the next decade; more so if there is continued pressure in favour of encryption from various angles, even though admittedly, encryption poses a challenge to criminal investigations. A similar discussion took place during The Politics of Encryption (WS 53). Here too, a law enforcement agent explained why governments needed access to encrypted data and how it can be used to prevent crime and increase public safety.

In the same workshop, the UNESCO representative expressed the need for an international regulatory framework on encryption and set out the progress that was made at UNESCO during its General Conference. The UNESCO research project on Balancing privacy and transparency in the context of promoting online freedom of expression, which is expected to look at privacy, transparency, encryption, and related issues, will be finalised by the end of the year.

 

 

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