Government Access To Encrypted Communications

By | June 30, 2021
Government Access To Encrypted Communications

Last Updated on by Admin LB

Encrypted communication is a communication wherein the data between the sender and the receiver is safe and private between these two parties and no third party could access the communication.

One of the disadvantages in small scale is the flow of erroneous and inaccurate flow of information and at a large scale, rackets of child pornography and planning of crimes, etc. because of which there has always been scrimmage between governments and private service providers. Countries have form legislation to work and regulate the working of such applications like Australia U.S.A, China, etc. whereas India is still working on the formulation of such legislation.

One of the attempts made by the government was the creation of the Draft of National Encryption Policy which did not gather enough support from experts and citizens and was ultimately withdrawn. As India at this time do not have any law specifically devoted to encryption which makes it extremely difficult for the government to manipulate foreign companies’ services to form it according to the needs of the country.

Introduction

The Internet furnishes numerous methods of speaking with companions, family, strangers, or colleagues. There is an incredible shot at snooping by a third party into the communication who can peruse, track, and use them. Along these lines, to keep quiet and deny others from snooping, it is imperative that we use encryption codes.

Encryption is an interaction through which any data is encoded to keep some other accidental third party from viewing it. Encrypted communications would restrict any accidental beneficiary to enter and get insights of the conversations. Encrypted communication is a communication wherein the data between the sender and the receiver is safe and private between these two parties and no third party could access the communication. These encrypted parts of data are put away with the original protector and must be unencrypted by the important cryptographic keys.[1]

Encryption is critical to get data from being exfiltrated. The communication between two individuals includes sensitive information and delicate data that a third party can abuse. Subsequently, encrypted interchanges keep some other individual from intervening and get the data.

The significant benefits of encryption are:

  • To facilitate the secret communications of individuals.
  • To provide secure conversations without any third-party intervention.
  • To prohibit the data to get leaked or misused or exfiltrated.
  • To carry out secret data transfers in the military and governments.
  • To protect data that is stored in a computer or any storage device.
  • To prevent any person’s confidential data or personal records from being exposed.
  • To protect the data even if the physical security measures fail.
  • To protect data in transit.

These benefits can be comprehensively perceived as that to secure any data whether on the way or the rest demands protection from whatever other the third individual who coincidentally is accessing those data. Along these lines, through encryption certain particular codes are produced through which no individual other than the sender and the planned beneficiary could access it.[2]

The Need for Government Access to Encrypted Communication

In any investigation and prosecution, data and proof assume a key part. Lawbreakers would flourish to secure their data identifying with the crime or their exercises from the specialists authorizing the law. In criminal cases, the police officers or law implementation specialists have the authority and power of search and seizure.

So likewise, in advanced communications, wiretapping is utilized as the best method of getting data. To pursue the court’s order or capacity in some other government measures, the public authority can require the organizations to decode encrypted interchanges or to give the public authority such intends to unscramble such communication. Certain predefined insight organizations are set up by governments to acquire admittance to required encrypted interchanges.

Different countries have different laws when they need to decrypt encrypted communications.

In France, national intelligence and security services may obtain authorization from the Prime Minister or his delegate, upon the written request of a senior minister, to intercept and read private communications for specifically enumerated purposes, and may request from providers of cryptology services the means to decipher encrypted communications. French law also provides for investigative judges to order the interception, recording, and transcription of private telecommunications in criminal investigations, and law enforcement authorities may obtain authorization to ask any qualified person to perform the technical operations that would allow access to this information.

In Belgium, the intelligence services may obtain authorization from a special independent commission to secretly access, listen to, or recording private communications, and can serve a written demand to the network operator or the service provider for technical assistance; such providers are required to have the technical ability to provide decrypted copies of communications when requested by Belgian intelligence. Also, investigative judges may authorize communication interception operations under certain legally defined circumstances and may order anyone who has particular knowledge of a relevant encryption service to help access communications in a readable format.

Under current law in the UK, specified law enforcement and intelligence officials under certain circumstances may serve written notice on persons or bodies requiring them to disclose encrypted information in intelligible form. A draft revision of the relevant UK law is being considered.

In Australia, under some circumstances, the police may obtain an order from a court requiring certain persons to provide information or assistance to enable the police to unlock a computer or digital storage device that is subject to a warrant, or to provide information on the decryption of data on such a device in order to make it intelligible to the police.[3]

In Japan, law enforcement officials may request the courts to order the decryption of encrypted information during criminal investigations, and courts may also order the decryption of encrypted information during trials.

In South Africa, a law enforcement officer may apply for a “decryption direction” from a court requiring a decryption key holder to disclose the key or provide decryption assistance. In some countries, such as Canada and Taiwan, the relevant law does not explicitly address decryption but does provide a framework under which telecommunications companies are required to assist with government surveillance of communications, and the framework would appear to permit orders requiring them to assist with decryption, at least subject to reasonable technological feasibility.[4]

Similarly, in Brazil, while the relevant law does not make direct reference to decryption pursuant to a warrant, the federal telecommunications agency has provided in regulations that communications providers must make available to certain authorities the technological resources and data relating to the suspension of telecommunications confidentiality. Two known cases apparently involving judicial enforcement of decryption orders (albeit subject to judicial secrecy) suggest that companies may be considered obligated to provide decryption assistance to the government.

In Israel, the law does not specifically address orders for decryption. However, encryption activities are regulated and licensed by the Ministry of Defence, and officials of that Ministry may enter any place where an encryption-related activity is being conducted and request information at any time regarding the subject of an encryption license.

In Germany, certain intelligence and law enforcement agencies have the authority to access and intercept communications. While they may use whatever technologies, they have at their disposal to unlock encrypted communications, and they may demand telecommunications providers to remove encryption put in place by such providers, there is no legal basis in Germany to compel end users to turn over encryption keys they have used, on the principle that suspects cannot be compelled to cooperate in investigations that would incriminate themselves.

Under current Swedish law, it appears unlikely that a Swedish court would force an ISP, encryption firm, or other entity to decrypt data, because warrants must satisfy a proportionality test, and order of decryption would not likely be considered proportional. There have been some calls and proposals for legislative changes.

At the European Union level, there is no EU legislation that requires tech companies to disclose the keys to encrypted materials to law enforcement authorities or to decrypt communications upon the request of a government. Relevant agencies on cybersecurity, organized crime, and terrorism have not reached a uniform position on this issue.[5]

India’s Legal Framework

The Information Technology Act 2000, was amended in 2008 to align it with quickly developing technology. One critical change was the inclusion of Section 84A, which engaged the public authority to recommend the modes and techniques for encryption to advance e-administration and e-commerce.[6] Another change fleshed out Section 69, which approves the central and state governments to catch and unscramble any data important for ensuring public safety, safeguarding public requests, or examining crime. The section additionally requires clients and legal organizations to help law authorization and government offices with getting to this information.[7]

Not long after passing these amendments, the government came up with the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 (in the future alluded to as the Decryption Rules). These standards explained the boundaries of unscrambling and the necessary convention. For example, unscrambling help was characterized as permitting admittance to data to the degree conceivable and just when the intermediary has authority over the decoding keys.[8] Presumably, this eliminates the onus from start to finish encryption suppliers to unscramble data on their network.

The In-famous WhatsApp Case

In the course of the last two years, around thirty people have purportedly been killed by lynch crowds disturbed by WhatsApp forwarded messages. These forwarded messages seem, by all accounts, to be part of coordinated misinformation campaigns that use edited videos and images to warn people of child abductors in their area. This has caused entire communities—especially in rural and underdeveloped areas—to become suspicious of “outsiders,” often leading to mob violence.

In failing to make arrests and ensure public order, the Indian government has chosen to ascribe blame to WhatsApp’s end-to-end encryption. It has demanded that WhatsApp’s messaging service allow tracing to help identify the original sender of messages.

WhatsApp has so far resisted this demand and instead implemented other measures, such as adding labels to forwarded messages and restricting the forwarding of messages to five individuals at a time. Given WhatsApp’s resistance, combined with apprehensions around the spread of fake news in the run-up to the general elections in April and May 2019, the government introduced amendments to its intermediary guidelines. The amendments are likely to have a significant bearing on encryption.

Conclusion

The debate on whether the government should have access to encrypted information is never-ending. Even though, when an individual has every right to privacy and protects his data, it is imperative that this information is not given to any third party with the lawful knowledge of that person. But on the other hand, it is equally important to note that cybercrimes are booming and the government must step in and intervene in certain cases to investigate and prevent the commission of crimes.


References

  1. https://www.loc.gov/law/help/encrypted-communications/gov-access.pdf
  2. https://www.nap.edu/read/5131/chapter/7#95
  3. https://smallbusiness.chron.com/types-encrypted-communication-52746.html
  4. https://blog.ipleaders.in/regulation-encrypted-online-communication/

[1] Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), Available Here.

[2] See generally Telecommunications Interception and Surveillance: Overview of Legislation, ATTORNEY-GENERAL’S DEPARTMENT, (last visited Apr. 8, 2016), Archived at.

[3] Inquiry into Potential Reforms of National Security Legislation, PARLIAMENT OF AUSTRALIA, Available Here

[4] Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, Available Here, archived at https://perma.cc/76L5-MHBU.

[5] Consolidated Version of the Treaty on European Union art. 3, para. 2, 2012 OFFICIAL JOURNAL OF THE EUROPEAN UNION [O.J.] (C 326) 13, updated version Available Here, archived at https://perma.cc/7Z7R-5RQ4

[6] Section 84, Information Technology Act 2000.

[7] Section 69, Information Technology Act 2000.

[8] Rule 2(g)(i), Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption Rules) 2009; and Rule 13(3) Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption Rules) 2009.


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Spread the love
Author: Antariksh Anant

Antariksh is a Law student at RGNUL - Rajiv Gandhi National University of Law Patiala, Punjab, India.

Leave a Reply

Your email address will not be published.