In his first report to the UN Human Rights Council on Wednesday, the UN special rapporteur for the right to privacy, Joseph Cannataci, laid out an ambitious agenda for addressing the growing concern about protection of privacy in the trans-border digital environment
Two principles underpin his report. First, in a world that benefits greatly from an Internet without borders, privacy safeguards must be available regardless of national borders. Second, remedies for violations of privacy likewise must be available across these borders.
Most striking was his identification of “Privacy Landmark Events for 2015-2016.” First on this list was the "wise restraint" demonstrated by the US and the Netherlands in their decisions not to use law to permit or require engineering of backdoors in encrypted conversations.
He underscored the Dutch government’s conclusion in announcing its position in January that “[Special technical access] could have undesirable consequences for the security of information communicated and stored, and the integrity of ICT systems, which are increasingly of importance to the functioning of society.”
Although Cannataci acknowledged that the US position is less unified and clear cut, he suggested that in his role as special rapporteur, in addition to shining a light on privacy misdeeds, he intends to commend good decisions, even if incremental, if they help make progress on privacy protection.
He highlighted the October 2015 announcement that the US would, for the time being, not call for legislation requiring companies to undermine the security of their products to decode messages for law enforcement. That ought to give pause to legislators in both the US and in France who are trying to preempt the issue by readying bills in the wake of the Apple v. FBI controversy.
He also cited the comments of US Defense Secretary Ash Carter that “strong encryption is essential to the nation’s security” and that he is “not a believer in backdoors.” Cannataci said this perspective should be encouraged within US leadership ranks and reinforced wherever possible. We hope the government in France adopts this perspective as well.
We have similarly called on the Obama administration to go further and put the US firmly on the side of strong encryption, and unequivocally reject legislative requirements or informal government pressure on companies to build backdoors into their services. Cannataci’s most basic message is that when states legitimize bulk data collection or mass surveillance – they are setting a bad precedent in a world without digital borders. Rather than legitimizing mass surveillance they should be outlawing it.