Digital encryption may seem like a niche topic to be the center of an international debate. Yet in recent months, UK Prime Minister David Cameron, FBI Director James Comey, NSA Director Adm. Mike Rogers, and President Obama have all weighed in on the possibility of widespread consumer-technology encryption.
They have all suggested, with varying degrees of nuance, that tech companies should not encrypt their devices in a way that would make it difficult or impossible for law enforcement to gather information from them during an investigation. Companies like Apple and Google promised to introduce default encryption even they couldn’t break in response to Edward Snowden’s leaks revealing mass government surveillance. On Tuesday, Hillary Clinton called the encryption debate a “classic hard choice” between privacy concerns and national security.
Governments are most concerned with preventing “bad guys” from using encryption to hide evidence–“going dark,” as Comey put it at the Brookings Institute last year. But many journalists, some of whom have been prosthelytizing for encryption as a reporting tool for years, dislike the message they’re hearing from public officials. The challenge is to turn the “bad guy” narrative into a wider discussion of the legitimate, beneficial uses of encryption.
In an attempt to win a major ally in that fight, the Committee to Protect Journalists and the Reporters Committee for Freedom of the Press last week announced they had submitted a joint letter to the United Nations, arguing that reporters must be able to “use encryption to protect themselves, their sources, and the free flow of news.”
The letter was sent in response to a call for submissions by David Kaye, the UN Special Rapporteur for freedom of opinion and expression, who is writing a report on “the legal framework governing the relationship between freedom of expression and the use of encryption to secure transactions and communications.”
Kaye said he hopes to do for encryption what a report by his predecessor at the UN, released about a month before the first Snowden revelations, did for the understanding of mass surveillance.
“Before people thought of surveillance as purely an issue of counterterrorism and law enforcement, and I think people now understand–beyond the human rights community–that surveillance has an impact, and has an impact on rights,” Kaye said in a phone interview. “It’s one thing for journalists who are covering the Snowden revelations to write about it. It’s another for an independent expert at the UN to kind of provide a framework for thinking about it.”
Geoffrey King, the internet advocacy coordinator for CPJ who helped draft the letter to the UN, said that framework needs to urge nations to recognize encryption as a tool for protecting journalists, activists, and other vulnerable groups.
“I think that at this stage, the normative power of having the United Nations take a strong stance is very significant,” he said in a phone interview. “Really we’re trying to protect the space for journalists to be able to help themselves.”
The CPJ/RCFP letter gives examples from around the world of journalists who successfully used encryption to protect sensitive material and of others who were arrested because they did not. It argues that journalists worldwide will be safer from repressive governments when encryption is widely adopted or made the default, and, crucially, makes the point that policies that undermine encryption technology undermine safe journalism.
Unfortunately, digital security experts say Western intelligence officials are in fact undermining encryption’s effectiveness when they urge tech companies to retain some sort of access to a user’s device. King said he has been worried to hear the questionable understanding of encryption coming from high places recently.
“Now we have the director of the FBI, the attorney general of the United States, the president of the United States, and the prime minister of the United Kingdom all making some fairly spurious arguments about the actual threats and how encryption works,” King said. “When we have people at that level, who should know what they’re talking about, who have all the resources available to them, making misstatements like that, it’s very, very troubling.”
Kaye said he understands why journalists are concerned to hear the way intelligence officials are framing the encryption debate. He hopes his report–due to be presented to the UN Human Rights Council in June–will provide countries with a road map for making the hard choices necessary to fully accept encryption.
“If anything, the most important impact that we can have is trying to generate a realistic discussion of the trade-offs,” Kaye said. “If you go down a route of seeking back doors or whatever they want to call it, there are serious implications on other equities that governments have. It has serious implications for activists, for free press, for even our financial securities.”
While national governments are the primary audience for Kaye’s report, he also aims to make journalists more comfortable using encryption. A recent Pew poll shows though 80 percent of journalists believed being a reporter makes it more likely the US government will collect their data, half said they don’t use online security tools.
“The technology [of encryption] is scary to some people, or it’s seen as too difficult,” Kaye said. “I think it’s important for there to be more people actually using it to protect themselves.”
Given the current message on encryption emanating from Washington and the lackluster implementation of the technology among journalists, Kaye’s report can’t come soon enough.
Kelly J O'Brien is a freelance journalist based in Boston. Follow him on twitter at @kelly_j_obrien