Update: The Council of the European Union publishes recommendations on encryption
In November, the Austrian broadcasting network “Österreichischer Rundfunk” sparked a controversial discussion by publishing leaked drafts of the Council of the European Union (“EU Council”) on encryption (please see our blog post). After these drafts had been criticized by several politicians, journalists and NGOs, the EU Council published “Recommendations for a way forward on the topic of encryption” on December 1st, in which it considers it important to carefully balance between protecting fundamental rights with ensuring law enforcement investigative powers.
The EU Council sees a dilemma between the need for strong encryption in order to protect privacy on one hand, and the misuse of encryption by criminal subjects such as terrorists and organized crime on the other hand. They further note:
“We acknowledge this dilemma and are determined to find ways that will not compromise
either one, upholding the principle of security through encryption and security despite
encryption.”
The paper lists several intentions that are supposed to help find solutions to this dilemma.
First, it directly addresses EU institutions, agencies, and member states, asking them to coordinate their efforts in developing technical, legal and operational solutions. Part of this cooperation is supposed to be the joint implementation of standardized high-quality training programs for law enforcement officers that are tailored to the skilled criminal environment. International cooperation, particularly with the initiators of the “International Statement: End-to-End Encryption and Public Safety“, is proclaimed as a further intention.
Next the technology industry, civil society and academic world are acknowledged as important partners with whom EU institutions shall establish a permanent dialogue. The recommendations address internet service providers and social media platforms directly, noting that only with their involvement can the full potential of technical expertise be realized. Europol’s EU Innovation Hub and national research and development teams are named key EU institutions for maintaining this dialogue.
The EU Council concludes that the continuous development of encryption requires regular evaluation and review of technical, operational, and legal solutions.
These recommendations can be seen as a direct response to the discussion that arose in November. The EU Council is attempting to appease critics by emphasizing the value of encryption, while still reiterating the importance of law enforcement efficiency. It remains to be seen how willing the private sector will cooperate with the EU institutions and what measures exactly the EU Council intends to implement. This list of intentions lacks clear guidelines, recommendations or even a clearly formulated goal. Instead, the parties are asked to work together to find solutions that offer the highest level of security while maximizing law enforcement efficiency. In summary, these “recommendations” are more of a statement of intent than implementable recommendations on encryption.
