Legal Standards Pertaining to Online Freedom Of Expression
Encryption and Human Rights
United Arab Emirates
The Internet represents a major development in enabling persons to communicate with others and to obtain information. Some have compared its importance to the invention of the printing press.
In the view of Human Rights Watch, the rights to freedom of expression, information, privacy, and free association under international law apply as much to online communication as to other forms of individual communication. While international treaties and instruments do not address electronic speech specifically, their assertion of the right to "seek, receive and impart information and ideas through any media and regardless of frontiers" (emphasis added) is clearly applicable to expression via the Internet.
Article 19 of the Universal Declaration of Human Rights proclaims:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) reaffirms that everyone's right to freedom of expression "shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." Article 19 states, furthermore, that restrictions on this right "shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."(2) The ICCPR has been ratified by Algeria, Egypt, Iran, Iraq, Israel, Jordan, Lebanon, Kuwait, Libya, Morocco, Syria, Tunisia, and Yemen. It has not been ratified by Bahrain, Oman, Qatar, Saudi Arabia, and the United Arab Emirates.(3)
The Open Internet Policy Principles, declared in March 1997 by a working group of European and North American experts, point out:
The Internet does not exist in a legal vacuum. For the most part, existing laws can and should regulate conduct on the Internet to the same degree as other forms of conduct. Such laws may differ from country to country, but should conform with the applicable binding human rights obligations contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights.
Under international law, governments are allowed to restrict the free flow of information to protect certain narrow interests such as national security or public morals. But any prior censorship of material before it is published should be subjected to the strictest level of scrutiny in line with international standards, which normally includes inquiry into the interest sought to be protected, the seriousness of the threat, and whether there are alternate means of protecting that interest that are less restrictive of the right to free expression. Indeed, the American Convention on Human Rights states in Article 13 that the right to freedom of expression "shall not be subject to prior censorship." Filtering or blocking access to Internet material by a government amounts to pre-publication censorship. Virtually all governments in the Middle East that block content on the Internet suppress some material that is unquestionably legal. Moreover, none of the governments in the region make public how censorship is actually practiced and what sites are blocked, insulating their actions from any scrutiny or evaluation under international human rights standards. The decision of what to block, and what technology to use to block it, should be in the hands of end users, rather than governments. A variety of software programs is readily available to users for this purpose.
The Right to Privacy
The freedom from arbitrary and unlawful interference with one's privacy and correspondence is protected in international law, and applies to electronic communications.(4) A capricious, unjust or disproportionate interference would be "arbitrary," as would one that was for a purpose inimical to the protection of human rights more generally, such as inhibiting peaceful dissent. States may not randomly or freely intercept or monitor e-mail or Internet usage; in the narrow circumstances where surveillance can be justified, it must be subject to limitation and control to avoid infringing these rights. Moreover, the International Covenant on Civil and Political Rights requires states to act positively to protect individuals from such interference with privacy or correspondence on the part of third parties such as non-state actors.(5) Encryption, as a technology that protects communications and correspondence from arbitrary interference, should be lawful and accessible to individual users.
The Right to Communicate Anonymously
Free expression encompasses a right to communicate anonymously. Anonymity in communications is critical to the right to express political beliefs, and to seek and impart information without fear of retribution. Anonymity has served persons who wish to provide anonymous tips to journalists or "blow the whistle" on improprieties in their workplace, authors who wish to write under assumed names, and participants in sensitive discussions, such as an AIDS support group. The role of anonymous speech in fostering freedom of expression was eloquently defended thus:
Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.(6)
Encoding electronic communications ("encryption"(7)) is growing more commonplace, and indeed, is commonly recognized as essential to facilitating the growth of electronic commerce. "Strong" encryption software, that is, coding that is nearly impossible for third parties to decipher, is widely available now to individuals and businesses, where once it was solely used by governments. Encryption protects privacy of communications, but even more importantly, it enables the free expression of ideas and information, particularly where there has been a record of government surveillance and repression. By guaranteeing privacy of communications and authenticating the identity of communicators, encryption also enables free association between individuals in cyberspace, an important extension of a traditional right in the new circumstances of globalization.
While there are legitimate law enforcement concerns that must be taken into account in any national policy on encryption, there is no justification for either banning individual use of encryption or licensing users. Encryption should be viewed as a vehicle of expression like a language; the use of encryption alone should not subject an individual to criminal sanction, any more than should the use of Esperanto or Swahili to communicate.(8) Individuals should not be required to obtain authorization from the authorities in order to send or receive encrypted communications, nor should they be compelled to provide in advance to law enforcement authorities access to key recovery or other mechanisms that would permit the decoding of their communications. These are all over-broad policies that penalize law-abiding persons.
Assigning Liability for Online Content
The right to free expression is best served by laws that focus liability for speech on the originator of the offending content, rather than on its conduit. ISPs do not fit neatly into any existing media paradigm and should not be subjected to regulatory structures that may be suitable for other technologies or media, such as a newspaper that can be held liable for articles appearing in its pages. ISPs act most of the time merely as conduits of information (data carriers, akin to telephone companies), offering the technical means for users to receive and disseminate information. In most cases, ISPs have no knowledge of the content of the messages they transmit, or even of the web sites they host--many of which are revised daily by their authors. The situation is arguably different when the offending content is contained in material over which the ISP exercises editorial control, such as a proprietary opinion column; or when the ISP is made aware that offending content has been posted on a web site it hosts and does not remove it.
To hold ISPs presumptively liable for all content they host or carry would pose a regulatory burden on providers that would drastically reduce and slow the flow of information--if the burden could be carried at all. The Global Internet Liberty Campaign (GILC) argues, "No one can monitor the enormous quantity of network traffic, which may consist of hundreds of thousands of e-mails, newsgroup messages, files, and Web pages that pass through in dozens of text and binary formats, some of them readable only by particular proprietary tools." Second, GILC points out, "ISPs cannot provide material in one country while blocking it in another; such a distinction would require an enormous new infrastructure on top of the current network."(9)
2. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, put forward on October 1, 1995 by a group of experts in international law, national security, and human rights, state that restrictions on freedom of expression should be permitted only when "the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest" (Principle 1.1, section d). According to the Principles, the burden of demonstrating the validity of the restriction rests with the government. Criticism of the government or its leaders is protected. In addition, a government must demonstrate that "the restriction imposed is the least restrictive means possible for protecting that interest" (Principle 1.3, section b). Copies of the Johannesburg Principles are available from Article 19 in London and at <www.osi.hu/colpi/a19>.
4. The Universal Declaration of Human Rights affirms in Article 12, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence." The International Covenant on Civil and Political Rights states in Article 17, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence..." The language of this provision is broad enough to encompass online communications, including electronic mail and newsgroup postings.
5. The ICCPR, article 17(2), states, "Everyone has the right to the protection of the law against such interference or attacks." See also Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 289-290.
6. Excerpted from the decision of the U.S. Supreme Court in MacIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
7. Encryption involves encoding a text prior to transmission, through the use of mathematical logarithms, so that it can be read only by the sender and the intended recipient, who are in possession of "keys" that decrypt the encoded text and present it in its original form.
8. Dinah PoKempner, "Briefing Paper: Encryption in the Service of Human Rights," August 1, 1997, <http://www.aaas.org/spp/dspp/cstc/briefing/crypto/dinah.htm>.
9. Global Internet Liberty Campaign, Regardless of Frontiers: Protecting the Human Rights to Freedom of Expression on the Global Internet (Washington, DC: Center for Democracy and Technology, September 1998), pp. 30-31. GILC is a coalition of organizations, including Human Rights Watch, that seeks to promote free expression, privacy, and other rights in online communications. Regardless of Frontiers is also at <www.gilc.org/speech/report>.
© June 1999
Human Rights Watch