Curbing government Internet surveillance

STANFORD/PRAGUE — Government efforts to access private communications are nothing new. In decades past, such attempts at prying were often justified on national-security grounds. Today, however, policymakers point to child safety and disinformation as reasons to limit privacy protections. Established democracies are often leading this charge, inadvertently paving the way for the world’s autocrats.

But people around the world are not taking these policies lying down. They speak out, using events like Global Encryption Day to highlight the importance of privacy and security not just for their own lives but for their communities and societies. And as vociferous opposition continues to stymie government efforts to expand surveillance powers, it has become clear that public pressure works.

Encryption, which scrambles digital data so that it can be read only by someone with the means to decode it, has become ubiquitous because it keeps information confidential and secure while authenticating the identity of the person with whom one is communicating. Today, billions of people use encryption to send digital messages and e-mails, transfer money, load websites and protect their data. The gold standard in security is “end-to-end” encryption (E2EE), as only the participants have access to the data, not even the service provider can decipher it.

Despite its immense value and global appeal, encryption is under threat worldwide. It is used by law-abiding citizens to protect themselves, but also by bad actors to hide their malicious activities. For this reason, law-enforcement authorities oppose encryption designs, especially E2EE, that prevent them from accessing data.

But even after decades of research, there is still no known way to grant law enforcement access without undermining encryption’s privacy and security features. The makers of encrypted devices and services have therefore resisted calls to build in “backdoor” government access, which would make all of their users more vulnerable.

The harmful online activities that concern police do not happen only in encrypted spaces. Hate speech, disinformation and other objectionable content remain a pernicious problem on social-media platforms and other sites, motivating a worldwide legislative push to force tech companies to improve their services. The British Parliament, for example, recently passed the Online Safety Bill (OSB) after several turbulent years during which civil-society pressure changed its scope significantly. The final version focuses mainly on the removal of illegal content and mitigating risks to children.

Yet the OSB still has serious flaws. For example, Parliament failed to include language safeguarding encryption. Moreover, the law gives Ofcom, the United Kingdom’s communications regulator, the authority to compel social-media platforms and messaging services to mass scan their users’ files and communications for evidence of child sexual abuse.

No one contests that fighting child exploitation is immensely important. But Ofcom’s power covers E2EE messaging services, which, by definition, cannot be accessed by service providers. Thus, the only way these services could comply with an Ofcom order is by making fundamental changes to their encryption design.

In other words, the OSB gives Ofcom the power to force service providers to undermine their own encryption. Apple, Meta and Signal have all promised to pull their E2EE apps from the UK rather than comply with any government order to diminish their users’ privacy and security. In response, Ofcom has publicly vowed not to use its new authority, at least for now.

And with good reason: important bodies have concluded that scanning technologies are not sufficiently accurate, would limit fundamental rights, and would likely fail the proportionality test, the disadvantages would outweigh the advantages. Furthermore, criminals could easily circumvent these controls by encrypting content with a separate application. Ofcom would be wise to tread carefully, lest it risk the privacy and security of Internet users for the sake of unproven and potentially ineffective technologies.

Ofcom’s (supposed) forbearance recalls Australian authorities’ conduct since the passage of a contentious 2018 law granting new governmental powers to compel communications providers to add backdoor access to their products. Civil-society and cybersecurity experts raised alarms about the law’s dangers for privacy and security, and legislators themselves admitted the bill was flawed, but it passed anyway.

Five years later, not a single compulsory notice has been issued. This may reflect a deliberate choice: Exercising such a power risks political blowback. Wield the sword too enthusiastically, and it might be taken away; better to keep it sheathed in favour of other, less controversial tools. Then again, government forbearance might also indicate that the controversial new power was unnecessary in the first place.

Public scrutiny of government powers keeps them in check. That is how a democracy is meant to work. In promising not to use its new tool, Ofcom appears to have grasped that the government’s legitimacy is at stake. But as the UK bill inspires similar legislation in other countries, some of which are less democratic and have a track record of weaponising digital technologies against their citizens, this nuance will likely be lost.

The first test will come in the European Union, where legislators are fighting over a draft regulation to expand tech companies’ child-safety obligations. Like the UK bill, the proposed Child Sex Abuse Regulation (CSAR) has already gone through numerous revisions, as member states lock horns over protecting E2EE.

Derisively called “chat control”, the draft CSAR has been widely decried for potentially forcing European service providers to scan all public and private communications, which would amount to an illegal general monitoring obligation. Recent reporting stoked these concerns by revealing that Europol, the EU’s law-enforcement agency, requested unlimited access to and use of the data produced beyond the purposes identified in the regulation; it appears to have no intention of restraining itself. Continued public pressure is necessary to push for reform of “the most criticised draft EU law of all time”.

If government surveillance is a concern in an established democratic entity like the EU, what hope is there for beleaguered democracies like Turkey, India, and Brazil, much less autocracies? Fortunately, the public movement in support of encryption is growing, with advocacy groups like the Global Encryption Coalition leading the charge.

By engaging with civil society, technologists, and the public, governments can design regulations that respect privacy, data security and freedom of expression while still helping protect users from harm. Doing so is the only way to make sure that the internet works for everyone.

Riana Pfefferkorn is a research scholar at the Stanford Internet Observatory. Callum Voge is director of government affairs and advocacy at the Internet Society. Copyright: Project Syndicate, 2023. www.project-syndicate.org