In his first report as UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye fired a shot across the bow of governments trying to force companies to build “back doors” into encryption software. His21-page report, which will be presented to the UN Human Rights Council tomorrow, concludes that encryption and digital anonymity are essential to protecting the foundational human rights of privacy and freedom of opinion and expression. Accordingly, limitations on them must be narrowly drawn.
Kaye makes an important distinction between the closely related concepts of freedom of opinion and expression, noting that the International Covenant on Civil and Political Rights (ICCPR) deliberately doesn’t allow any restriction of the former. In the digital age, Kaye argues, holding opinions “is not an abstract concept limited to what may be in one’s mind.”
Individuals regularly hold opinions digitally, saving their views and their search and browse histories, for instance, on hard drives, in the cloud, and in e-mail archives, which private and public authorities often retain for lengthy if not indefinite periods. Civil society organizations likewise prepare and store digitally memoranda, papers and publications, all of which involve the creation and holding of opinions.
By emphasizing the difference between the right to hold an opinion and the right to express it, Kaye establishes a personal space to explore ideas and formulate opinions that should not be infringed by governments, even in the name of national security or public order. Encryption and anonymity preserve this space and restrictions on them “may interfere with the ability of individuals to hold opinions.”