David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

First Annual Report to the 10th Meeting 29th Regular Session of the Human Rights Council

 

[TRANSCRIPTS by Robert Bodle (itals. mine)]

 

Thank you very much Mr. President, Excellencies, ladies and gentleman. Thank you for this first opportunity to address the Human Rights Council.

 

Last summer, during your 26th session, the Council entrusted me with the mandate to promote and protect the right to freedom of opinion and expression, for which I’d like to express my gratitude and humility. Today I am pleased to present to you my first annual report as Special Rapporteur. In this presentation I will spend the bulk of my time highlight the conclusions I’ve drawn from my study of digital security and freedom of opinion and expression. But I want to begin with a note concerning my activities and reflections.

 

A list of my activities since last August may be found on my mandate’s website. Among other things, my activities have involved identification of the goals of the mandate, and building capacity to achieve them, introducing myself to the main concerns of members of this council and other member states of the United Nations, and collaborating with the organizations international, governmental, and civil society that work to advance freedom of opinion and expression.

 

I’ve issued a wide range of requests for invitations for country visits, as well. And though I have not yet undertaken a country visit since my mandate began last August, I am pleased to have received positive responses from the governments of Turkey, Tajikistan, Jordan, Rawanda and Kenya. And I look forward to scheduling visits to these countries and others over the coming months. I have sent or joined 164 allegation letters, urgent appeals, and other communications, to governments on many issues and across all regions, and issuing or joining 33 press releases on matters of urgent concern. I want to thank those delegations that have responded substantively to these communications and indicate my hope that I will soon have the capacity to engage in a more detailed dialogue with you on these matters. I’ve also participated in substantive meetings related to the subjects of my mandate around the world.

 

Following up on the work developed by my predecessor, on the safety of journalists and the right to information, I will be dedicating my next report to the General Assembly, on the protection of sources and whistleblowers. A very short call for states to share their national norms on this topic was sent some weeks ago, and I look forward to receiving their responses and views on this matter.

 

Based on this short but intense period of my mandate, to date, I must emphasize concern at the deep and broad threats to freedom of opinion and expression around the world. Throughout this initial period of my mandate, communications have highlighted some of

the greatest threats to freedom of opinion and expression. These threats include:

  • attacks on free and independent media, including journalists and bloggers
  • attacks on political dissent and unpopular opinion
  • repression of civil society
  • attacks on the expression of members of vulnerable groups, especially religious and ethnic minorities, and persons who identify as lesbian, gay, bisexual or transgender
  • and widespread undermining of the right to seek, receive, and impart information online regardless of frontiers.

 

I expect to intensify my attention to these attacks in communications, public statements, and thematic work. Allow me now to return now to the thematic report I am presenting to the Council today.

 

The report concludes that encryption and anonymity have become critical enablers of freedom of opinion and expression in the digital age, protecting not only our security, the security of our communications – to be technical – our data in transit, but also our data at rest. That is, the information and ideas we store on our laptops, our tablets, smart phones, the cloud, and elsewhere.

 

The report benefitted from nearly 20 submissions from states, and 30 submissions from civil society, which may be found on the mandate’s website.

 

I want to make three general points about the report, before identifying a few recommendations and then concluding.

 

First, encryption and anonymity would not be as critical if we lived in a world without attacks on freedom of opinion and expression. But we live in a world in which mass and targeted surveillance, digital attacks on individuals and civil society, harassment of members of vulnerable groups, and a wide variety of digital opinion and expression resulting in serious repercussions including detention, physical attacks, and even killings.

 

We also live in a world of blocking, throttling, and filtering of the Internet, denying individuals the right to access information regardless of frontiers as guaranteed by Article 19 of the Universal Declaration and the International Covenant on Civil and Political Rights.

 

I know there are some who see encryption and anonymity as side issues on the broader canvas of freedom of expression today, but given that so much of our expression is in digital space, these security tools must be seen as being at the heart of opinion and expression in a digital age.

 

Second, over the course of preparation of this report, I have learned just how critical these tools are to those who exercise their rights. Time after time, individual journalists, activists, artists, academics, and others have emphasized to me that encryption and anonymity are essential for them to exercise their rights securely. My research has confirmed this point and I strongly believe that states should be doing everything they can to promote individual digital security.

 

Third, I fully understand the concerns of many governments, that they cannot be put at a disadvantage in their fight against terrorism and criminality. Governments have the obligation not only to respect, promote, and protect the right to freedom of opinion and expression, they also have the obligation to protect the right to life. However, laws, practices, and policies that ban, restrict, or otherwise undermine encryption and anonymity, all in the name of public order or counter-terrorism, even when not justified, do significant – and I would say disproportionate – damage to the rights at the heart of my mandate. They do so moreover, in an age of vast, previously unimaginable powers of surveillance, data and meta-data collection, geolocation, and other tools that have expanded the capacities of governmental security apparatuses everywhere. Put another way, the necessity and proportionality of restrictions on encryption and anonymity must be considered in light of this reality.

 

With that, allow me to highlight a few of my recommendations you may find in the report.

 

First, there are many examples in which states have not restricted the individual use of encryption or anonymity tools. I would strongly recommend that states follow this excellent practice or comprehensively protect use of these tools.

 

The report also recommends that states not only protect encryption and anonymity, but also promote their use as a matter of digital security.

 

Though the report does not deal extensively with the corporate sector, which I will do in later reporting, it also recommends that corporate actors include encryption in their products by design and default.

 

Second, today’s encryption technology does not allow for special access for the good guys, that could be denied to the bad guys. In other words, compelling private industry to install encryption vulnerabilities for government access will undermine everyone’s security against criminal activity or hostile state action. And as such, backdoors, golden keys, key escrows, and other tools of the vulnerability trade are disproportionate responses to crime and terrorism. The report strongly recommends against them.

 

Third, where states do legitimately need access to encrypted or anonymous information, the report recommends that governments only seek such access through judicial process, according to regular legal rules and procedures, and targeted on specific individuals and data.

 

Finally, I want to emphasize that the United Nations itself must improve digital security. Its websites are not generally secure, and where they are not, they must be moved to encryption. Individuals around the world, particularly those at risk, are unable to reach the UN in a secure way and that must change, particularly among the human rights mechanisms, if they are going to be safe spaces for those at risk.

 

Allow me to conclude where the report itself concludes. In short, the use of encryption and anonymity tools and better digital literacy should be encouraged. Encryption and anonymity depend on their widespread adoption and I encourage states, civil society organizations, and corporations, to engage in a campaign to bring encryption by design and default to users around the world. And when necessary, to ensure that users at risk, be provided the tools that exercise their right to freedom of opinion and expression securely.

 

Mr. President, ladies, and gentleman, my deepest thanks to you for presiding over this session, and I look forward to a rich and constructive dialogue. Thank you.

 

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