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Submission by the Association for Progressive Communications (APC) to the United Nations Special Rapporteur on the right to freedom of opinion and expression

In June 2015, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye will present a new report on anonymity and encryption before the Human Rights Council (HRC) in Geneva. APC welcomes these efforts, which present a significant opportunity to strengthen fundamental freedoms in the digital age, and this is why we contributed to Mr. Kaye’s consultation reaffirming the freedom to use encryption technology and to communicate anonymously.

As an organisation that advocates for everyone to have affordable access to a free and open internet to improve their lives and create a more just world, our submission focuses on the relationships between privacy, confidentiality and human rights in the age of the internet.

We specifically urge Mr. Kaye to include in his report that:

• Anonymity is fundamental for the full exercise of the right to freedom of expression, as enshrined in Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

• Anonymity is also inextricably linked to the right to privacy.

• Communications surveillance, or even perceived surveillance, is understood to have a chilling effect on freedom of expression, leading to self-censorship.

• Encryption protocols and standards should be constructed with privacy in mind.

• Anonymity is an important enabler of the right to freedom of association and assembly online and the right to be free from discrimination.

• As duty bearers for human rights, states have an obligation to positively ensure that people have a right to free expression, ensuring that applied cryptographic solutions are widely available.

• Anonymity and encryption are both critical for circumventing censorship.

• The ability to share information confidentially with various people – for example, one’s doctor, lawyer or intimate partner – on one’s own terms, known as the “right to whisper”, is essential.

• Anonymity and encryption are critical for empowering and protecting groups at risk. Communities who are socially and politically excluded, and face discrimination or violence, often turn to the internet as a “safer” space.

• Anonymity and encryption are important tools for combating hate speech and online violence.

• Anonymity and encryption facilitate the expression and realisation of sexual rights.

• Anonymity and encryption facilitate the exploration and expression of sexual identity and the realisation of sexual rights. They are also important tools for accessing information about sexual and reproductive health.

• The introduction of real-name policies – requiring users to use their real names on online platforms – can compromise users’ ability to express themselves anonymously, particularly in countries where human rights are frequently violated or where the space for civil society participation is limited beyond representative democracy.

Furthermore we make the following recommendations:

• States should not interfere with the use of encryption technologies, nor compel the provision of encryption keys.

• States should not undermine the integrity of open cryptographic protocols by building in backdoors.

• States should remove all restrictions on the import, export, development and use of encryption.

• States should not require individuals to provide their encryption keys in response to a judicial order of limited scope.

• States should not require internet intermediaries to provide the personal data of users without a judicial order.

• Internet intermediaries should contribute to reinforcing the right to privacy by not disclosing the personal data of their users without a judicial order.

• Intermediaries should not prevent users from accessing their services while using circumvention and anonymity tools.

• Developers should construct and design communication protocols and standards with privacy in mind, so that they cannot be used to deduce or construct the identity of an anonymous individual either by linking properties of anonymous traffic on a computer network (linkability), or by comparing the properties of anonymous traffic to externally available data (fingerprintability).

• States should put in place effective mechanisms for remedy that protect individuals whose rights have been violated due to limitations on anonymity, particularly for individuals from groups at risk.