by: Peter Davis*
INTRODUCTION
This paper argues that a right to encryption exists under the European Charter of Fundamental Rights[1] (“Charter”). The primary consequence of this right, as elaborated below, is to preclude any legal instrument within the scope of the Charter’s application that indiscriminately reduces the efficacy of encryption in mass-market applications and devices. Or, put in “Crypto Wars”[2] vernacular, this paper claims that encryption “backdoors” are prohibited as a matter of EU law.
On its face, this is an ambitious claim. Until recently,[3] “right to encryption” has only been spoken of gingerly in English language academic discourse[4] (though more robustly in, for instance, German[5]). However, the primary ground underpinning this argument involves the straightforward application of Court of Justice of the European Union (“CJEU”) jurisprudence concerning the essence of the right to respect for private life enshrined in Article 7 of the Charter.
Despite the title, it is not contended that encryption as a technology is, or should be, granted special constitutional recognition—or that it is an emerging, independent fundamental right in the Charter or elsewhere.[6] Rather, the “right to encryption” identified herein is better categorized as a derivative of the right to privacy in the Charter; the latter which may be regarded as the core or parent right.[7] It is hoped that positioning this piece’s primary argument as a “right to encryption” will provide it sufficient rhetorical strength to discourage stakeholders and lawmakers from pursuing solutions to encryption-related problems that are unachievable in practice and clearly breach fundamental rights.
…
[1] Charter of Fundamental Rights of the European Union, June 7, 2016, 2016 O.J. (C 202) 389
[hereinafter Charter].
[2] The “Crypto Wars” moniker has been commonly used to denote legal and policy debates concerning the regulation of encryption technologies. See, e.g., Danielle Kehl, Andi Wilson & Kevin Bankston, Doomed to Repeat History? Lessons from the Crypto Wars of the 1990s (2015); Koops & Eleni Kosta, Looking for Some Light Through the Lens of “Cryptowar” History: Policy Options for Law Enforcement Authorities Against “Going Dark”, 34 Comput. L. & Sec. Rev. 890 (2018); Paul McLaughlin, Crypto Wars 2.0: Why Listening to Apple on Encryption Will Make America More Secure, 30 Temp. Int’l & Comp. L.J. 353 (2016).
[3] See O.L. van Daalen, The Right to Encryption: Privacy as Preventing Unlawful Access, 49 COMP. L. & SEC. REV. 105804 (2023); see also Stavroula Chousou, Julia Magaud, Ludovica Pavoni & Morgan Williams, Is Encryption a Fundamental Right? A Case Study on CSAM Regulation in the EU (2023).
[4] See e.g. Joe Cannataci, Special Rapporteur on the Right to Privacy, U.N., Conference Presentation at the Hebrew University of Jerusalem: Encryption: A Fundamental Right…But Only as Absolute a Right as Privacy Itself (Sept., 23 2019); Michael Froomkin, The Constitution and Encryption Regulation: Do We Need a “New Privacy” 3 N.Y.U. J. Legis. & Pub. Pol’y 25, 33 (1999); Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L. Rev. 869, 878 (1996); Nicole Bernadette Dulay, The Right to Speak in Code: A Balancing of State Interest and the Right to Encrypted Speech, 2 U. ASIA AND PAC. L. J. 131 (2019); Miriam Wimmer & Thiago Guimarães Moraes, Quantum Computing, Digital Constitutionalism, and the Right to Encryption: Perspectives from Brazil, 1 Digital Society 12 (2022).
[5] See, e.g., Wolfgang Schulz & Joris van Hoboken, Human Rights and Encryption, in UNESCO Series on Internet Freedom 1, 38, 44, 55 (2016); MATTHIAS KETTEMANN, THE NORMATIVE ORDER OF THE INTERNET: A THEORY OF RULE AND REGULATION ONLINE 75, 162, 164, 212 (2020).
[6] See Chousou et al., supra note 3, at 24-26 (explaining that other similar “emerging” fundamental rights, such as the right to internet access and the right to cybersecurity, are not present in the Charter or other constitutional sources).
[7] See PIERRE THIELBORGER, THE RIGHT(S) TO WATER: THE MULTI-LEVEL GOVERNANCE OF A UNIQUE HUMAN RIGHT, 109-111 (Springer Berlin, 2013); Aleardo Zanghellini, Raz on Rights: Human Rights, Fundamental Rights, and Balancing, 30 Ratio Juris 25, 26 (2017); Margaret DeMerieux, Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms, 21 OXFORD J. OF LEGAL STUD. 52, 521 (2001).
* Postdoctoral Researcher, Centre for Advanced Studies in Bioscience Innovation Law, University of Copenhagen.
Published in CJEL Vol. 30 issue 1.
Read the full article on HeinOnline, Lexis, or Westlaw. Interested in receiving the Columbia Journal of European Law in print at your university or office? Please contact our Executive Editor at ee.cjel@law.columbia.edu.
Also published in Vol. 30 issue 1:
EU Abortion Law After Dobbs: States, The Market, and Stratified Reproductive Freedom, by Ivana Isailović
EU Lawlessness Law, by Sarah Ganty & Dimitry V. Kochenov
The Prospects and Perils Of US-EU Comparative Constitutional Law: An Interview with Koen Lenaerts, President of the Court of Justice of the European Union, by Justin Lindeboom
