The availability of encryption has come to be recognized as intrinsically bound with rights to privacy, free speech, freedom of association, and freedom of religion, collectively referred to as civil liberties or human rights. Law enforcement agencies are charged with respecting civil liberties, even while working to provide safety and security, which allows individuals to exercise constitutionally protected freedoms.
Government officials concerned about the effects of encryption frequently warn that encryption will disable the government from acting in circumstances where it would be in the public interest to do so. At the same time, opponents of government restrictions on encryption warn about the harmful effects of such restrictions on commerce and on fundamental rights of privacy, speech, and free association, including in repressive regimes. The committee does not seek to resolve these competing claims. It does note, however, that legal and constitutional constraints frequently prevent the United States and many other governments from acting, even when there are competing public interests, and also that rights likewise are not usually absolute.
In the United States, as the Supreme Court has explained, privacy, free speech, freedom of association, and freedom of religion are essential to a functioning democracy, and there is often a convergence of First Amendment rights, Fourth Amendment protections against unreasonable search and seizure, and the protected zones of privacy that stem from these rights. In a case involving undisclosed wiretap surveillance, the Court stated:
Historically, the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. . . . History abundantly documents the tendency of Government—however benevolent and benign its motive—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.1
The Court further described how the right to privacy is essential to protecting free speech rights:
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.2
Concern about the effects of government surveillance is a recurring theme in U.S. history. The Church Committee’s 1976 report, which detailed abuses of intelligence information involving every president from Franklin Roosevelt through Richard Nixon, warns of the potential chilling effect of government surveillance:
When Government infringes those rights instead of nurturing and protecting them, the injury spreads far beyond the particular citizens targeted to untold numbers of other Americans who may be intimidated.3
Vice President Hubert Humphrey observed in 1967:
We act differently if we believe we are being observed. If we can never be sure whether or not we are being watched and listened to, all our actions will be altered and our very character will change.4
These dangers to free expression posed by government surveillance were also addressed in Justice Sonia Sotoymayor’s concurring opinion in United States v. Jones: “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s
1United States v. United States District Court, 407 U.S. 297, 313-4 (1972).
2 Ibid., at 314.
3 Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, 1976, Intelligence Activities and the Rights of Americans, Book II Report No. 94-755, U.S. Senate, April 26, https://www.intelligence.senate.gov/sites/default/files/94755_II.pdf, p. 290.
4 E.V. Long, 1967, The Intruders, with a foreword by Hubert H. Humphrey, p. viii.
unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”5
Since the explosion of Internet availability and electronic communications capability around the world, exercising of the freedoms of speech and belief, including the right to obtain information, depends more and more on the ability to access the Internet and communicate electronically.6 As electronic communications and Internet access are subject to electronic surveillance, the right to privacy for one’s political, religious, and other communications, opinions, and activities has become even more important.
In particular, as surveillance capabilities have increased, threats to the exercise of these fundamental rights have also increased. Repressive regimes have imposed outright censorship on the Internet and tried to prevent the use of electronic messaging by political opponents and powerful countries have attacked political actors in other countries.
These developments have led to the view that encryption, which protects the privacy of communications and sensitive information, has become an intrinsic part of the rights to freedoms of speech and belief.7 Some would also contend that regulation of encryption amounts to a restriction on the manner by which citizens represent their own expression. In practice, encryption has come to play a more and more critical role in the work of journalists, human rights advocates, lawyers, public activists, and private communities of faith and opinion.8
Even in democracies that recognize the rule of law, the ability to
5 132 S. Ct. 945, 956 (2012).
6 As explained by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
The Internet has profound value for freedom of opinion and expression, as it magnifies the voice and multiplies the information within reach of everyone who has access to it. Within a brief period, it has become the central global public forum. As such, an open and secure Internet should be counted among the leading prerequisites for the enjoyment of the freedom of expression today. See David Kaye, 2015, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression: A/HRC/29/32, Report to the Human Rights Council, May 22, p. 5.
7 “Encryption and anonymity provide individuals and groups with a zone of privacy online to hold opinions and exercise freedom of expression without arbitrary and unlawful interference or attacks.” D. Kaye, 2015, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression: A/HRC/29/32, Report to the Human Rights Council, May 22, p. 7.
8 In the United States, most of the major media have adopted methods using encryption to enable secure communication between sources and journalists. (See for example, https://www.nytimes.com/newsgraphics/2016/news-tips/.) The State Department has recognized the use of encrypted communications by human rights advocates and political dissenters in repressive countries as so important that the U.S. government has provided important support for the use of encryption technology. See D. Kaye, 2015, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression: A/HRC/29/32, Report to the Human Rights Council, May 22.
engage in secure communications is an important protection for civil liberties. Moreover, those in such countries also face threats from actions sponsored by other nations as well as potentially from domestic political opponents. In addition, citizens of these democracies who travel in other countries are affected by the state of civil liberties and the rule of law there.
This report considers whether technical measures required by law to provide the government with access to specific plaintext pursuant to a valid and proper warrant could weaken the security of other encrypted information belonging to other individuals. If so, such measures may negatively impact the civil liberties or human rights of those individuals who are not targeted by the particular warrant. At a minimum, the availability of encryption for communications protects against the chill to free speech stemming from the fear of illegal government surveillance.9
There are also situations where law enforcement claims the legal right to obtain information without a warrant. In some of those situations, the Supreme Court has agreed with law enforcement, in others the Supreme Court has disagreed with law enforcement, and in still others, there remains some vagueness or uncertainty. Individuals may encrypt their information to safeguard against circumstances where the government does not have a warrant and the law regarding government access is unclear.
At the same time, as discussed in Chapter 4, criminals and terrorists use encryption to hide their activities from law enforcement and take actions that negatively impact the security of law-abiding individuals.
Solutions, therefore, must take into account both the needs for individuals to be able to have their privacy and civil liberties protected from intrusive government encroachment and individuals’ interests in protecting against both criminal actors and threats to national security.
9 Public perception of the risk of illegal government surveillance has been shaped by recent developments. For example, major thefts of documents from U.S. government agencies concerning their surveillance capabilities have generated widespread, although not always completely accurate, news coverage.