Anonymity, Encryption, and Free Speech: What Nations Need to Do

In his landmark report to the 23rd session of the Human Rights Council, Frank La Rue, the U.N's free speech watchdog, makes clear that anonymous expression and secure communication are critical for an open society. We gave you a quick look at that report yesterday. Now we want to take a deep dive into his support for your rights to anonymity and encryption, and what countries need to do to reflect his conclusions.

La Rue’s official title is “Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression”. In 2011, he called upon states to ensure that individuals have the right to express themselves anonymously online. In this year’s report, La Rue highlighted how restrictions on anonymity chill free speech. La Rue told states that they should generously err on the side of protecting freedom of expression rather than restricting it, and concluded:

Anonymity of communications allows individuals to express themselves freely without fear of retribution or condemnation. Restrictions of anonymity in communication, for example, have an evident chilling effect on victims of all forms of violence and abuse, who may be reluctant to report for fear of double victimization. States should refrain from compelling the identification of users as a precondition for access to communications, including online services, cybercafés or mobile telephony.

In many nations, individuals must identify themselves by presenting government-issued photo IDs at cybercafés and have their transactions on public computers recorded. Increasingly, identification and registration are also required when buying a SIM card or cell phone, for performing important transactions online, or even for posting comments on media sites or blogs.

Individuals are now also required to use their real names online in many states. China recently adopted the Decision to Strengthen the Protection of Online Information, requiring Internet and telecommunications providers to collect personal information about users when they sign up for Internet access, landline, or mobile phone service. Service providers allowing users to publish online are required to be able to link screen names and real identities. These real name registration requirements allow authorities to more easily identify online commentators or tie mobile use to specific individuals, eradicating anonymous expression.

While users can enjoy relative anonymity on the Internet, La Rue stressed that states and private actors have access to technology to monitor and collect information about individuals’ communications and activities on the Internet. “Without adequate protection to privacy, security and anonymity of communications, no one can be sure that his or her private communications are not under states’ scrutiny”, the U.N envoy concluded.

EFF has always argued that encryption is crucial to create that security. In the absence of encryption, online communications can easily be intercepted by anyone, not just the police. Individuals and government agencies should all use strong encryption routinely. The report warns that the security and anonymity of communications can be undermined by laws that limit the use of privacy-enhancing tools. La Rue insists that individuals should be free to use whatever technology they choose to secure their communications, and that states should not interfere with the use of encryption technologies, nor compel the provision of encryption keys. States should not retain or require the retention of particular information purely for surveillance purposes.

La Rue’s comments on encryption could not come at a better time.  Today, governments all around the world are seeking to ban, block, or redesign personal communications technologies based on a misguided notion that these technologies are too secure. The United States has recently considered increasing law enforcement agencies’ abil