Encryption & Key Management , Governance & Risk Management , Government

Encryption Vital for Right to Privacy, European Court Rules

Court of Human Rights Ruling Challenges Russian Data Interception in Telegram Case
Encryption Vital for Right to Privacy, European Court Rules
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A European court has sided with a Russian petitioner who challenged a Kremlin rule that requires telecom firms to backdoor their servers for law enforcement data collection. The court found that end-to-end encryption is essential to preserving the right to privacy in digital communication systems.

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The decision made on Tuesday by the European Court of Human Rights stems from a 2018 complaint from Russian national Anton Podchasov against the Kremlin, challenging a 2017 order by the Russian Federal Security Service. The Russian Information Technologies and Protection of Information Act requires Telegram to disclose the data of its users.

Under the law, companies listed as "internet communication organizers" have to store communication data of all Russian users within the country for six months. Companies also have to give the FSB the information needed to decrypt data and as well as identify the end-to-end protected messaging of users.

The FSB demanded that Telegram share details including IP addresses and data needed to decode the end-to-end protected messages of six app users. Telegram does not use end-to-end encryption as the default setting but uses a custom-built, server-client encryption scheme. The app allows users to apply end-to-end encryption by activating the "secret chat" feature.

Since the six app users did not enable this feature, Telegram refused to comply with the FSB order, arguing it was technically impossible as it would require the company to create a backdoor that would ultimately weaken the encryption mechanism for all its users.

Podchasov initially petitioned the Russian court, arguing that the provision requiring submission of encryption keys under the Russian law will decrypt communications of all users, violating the "right to respect for their private life and for the privacy of their communications."

The Russian district court dismissed the case on the grounds that it did not violate fundamental rights. The Moscow City Court and the Supreme Court of the Russian Federation also dismissed the case, so the petitioner took it to the European Court.

At the European Court, the petitioner argued that the Russian regulation violated Article 8 of the Human Rights Convention - the right to private life and correspondence.

The European Court heard from the European Information Society Institute, which said as end-to-end encryption is designed to ensure that only intended recipients have access to data, granting the request by the FSB would mean the privacy of all Telegram users would be compromised "for the sake of a small number of suspects."

Since telecom companies rely on encryption to shield their users from hacking, identity and personal data theft, as well as state surveillance, the EISI argued that weakening encryption would have a "chilling effect" on free speech.

The rights group Privacy International, which also testified before the court, said making companies backdoor their applications would force telecom operators to introduce "radical changes" to their software that will "weaken the encryption," making the application an easy target of hacking.

The rights group also argued that compliance with the Russian measure also would mean companies would be violating privacy and confidentiality requirements under European and other national privacy laws.

The European Court cited the United Nations High Commissioner for Human Rights decision on the right to privacy, in which the UN agency states that "encryption is a key enabler of privacy and is essential for safeguarding rights." The court also referenced the 2017 Council of Europe Parliamentary Assembly Resolution adopted in the wake of revelations from former U.S. National Security Agency contractor Edward Snowden about the U.S. government's mass surveillance program.

Expressing concerns about government tactics such as backdooring software components and exploiting vulnerabilities, the council recognized the need for "effective, targeted surveillance."

The European Court also said breaking encryption could cause "collateral damage" to internet security, citing a 2016 statement by the Europol and European Union Agency for Cybersecurity. The European agencies called for alternate models of intelligence collection through undercover operations, infiltration into criminal groups and accessing communication devices through live forensics on seized devices.

The European Court ruled that the decision of the Russian government to intercept the telecommunications interfered with Article 8 of the complaint and that "protection of personal data is of fundamental importance."

The court also found that Russian domestic law is "inadequate" as it does not include effective safeguards, such as information about how long the collected data can be retained and who can access it.

"The court concludes that in the present case, Russia's statutory obligation to decrypt end-to-end encrypted it not proportionate to the legitimate aims pursued," the European Court said. "Confidentiality of communication is an essential element of the right to respect for private life and correspondence."

The latest decision is less likely to prompt Russia to change its law, Stefan Soesanto, senior researcher at ETH Zurich Center for Security Studies, said. "The Russian government is not interested in shutting Telegram. We saw this from the country banning the app and later reversing it."

After Telegram was added as an internet communication organizer, the company refused to comply with Russian law, forcing it to relocate its office to Dubai. The Russian federal communication office Roskomnadzor banned the app in 2018. Later, the Russian government lifted the ban after Telegram agreed to cooperate with investigations of an extreme nature.

Soesanto said Telegram is likely to continue operating in Russia, and the FSB will use different tactics, such as hacking, to intercept communications.

Several governments are interested in weakening encryption, Soesanto said, and this latest European Court decision is not likely to dissuade them from pursuing legislative proposals to do so. European law enforcement agencies have argued that end-to-end encryption prevents them from collecting bulk data they need promptly to prevent terrorism and sex crimes.

One of the proposals that could affect encryption is the European Commission-backed bill to prevent online child abuse material - the CSAM proposal that would require telecom companies to carry out client-side scanning to identify CSAM content (see: EU's Proposed CSAM Bill Poses Hacking Risks).

The U.K. government recently passed a similar proposal called the Online Safety Act, which requires online intermediaries such as search engines and instant messaging apps to carry out client-side scanning in a bid to secure children from online harm. After privacy groups and telecom companies raised concerns about its harmful effect on encryption, the U.K. amended the law and mandated that tech companies find an alternate solution that will not affect encryption for content scanning (see: UK Government Seeks to Dispel Encryption Concerns).

The U.K. government is also racing to finalize a bill that aims to make data collection by British intelligence agencies easier by amending the scope of data that can be lawfully intercepted (see: UK Lawmakers Push Ahead With Revised Snoopers' Charter).

Ioannis Kouvakas, legal officer at Privacy International, said the latest decision from the European Court of Human Rights will send "a clear message to other governments currently toying with similar ideas."

Telegram did not respond to Information Security Media Group's request for comment.

About the Author

Akshaya Asokan

Akshaya Asokan

Senior Correspondent, ISMG

Asokan is a U.K.-based senior correspondent for Information Security Media Group's global news desk. She previously worked with IDG and other publications, reporting on developments in technology, minority rights and education.

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