European Court of Human Rights
Anton Valeryevich PODCHASOV v. Russia, Application no. 33696/19 WRITTENWRITTEN SUBMISSIONS OF PRIVACY INTERNATIONAL

I. Introduction and Summary of intervention
1.

This intervention is submitted by Privacy International (PI, the “Intervener”), pursuant to leave
granted by the President of the Section in accordance with Rule 44(3) of the Rules of the
Court. PI is a non-profit, non-governmental organisation (Charity Number: 1147471) that
research and advocates globally against government and corporate abuses of data andtechnology.

2.

Podchasov v. Russia concerns the Russian law obliging telecommunications service
providers to indiscriminately retain content and communications data for certain time periods,
as well as a 2017 disclosure order by the Russian Federal Security Service requiring
Telegram Messenger company to disclose technical information which would facilitate “thedecoding of communications”. As such, it presents the Court with an exceptionally unique
opportunity to assess the seriousness of interferences that seek to weaken modern
encryption tools and to uphold the rights of millions of users, by applying the Convention in
the digital era.

3.

This submission aims to assist the Court in its assessment of the compatibility of the Russian
legislation and disclosure order with Article 8 of the Convention. It is structured in four parts:
First, it describes how encryption, including end-to-end encryption works, and why it hascome to play a vital role for everyone around the globe as an enabler of the protection ofprivacy, as well as other human rights. Second, it discusses the implications of various
measures that seek to facilitate the decoding of encrypted communications, which, in linewith the Court’s case-law on communications surveillance, should be viewed as a serious
interference with the right to respect for private life and correspondence. Third, it argues that
imposing obligations upon telecommunications service providers to actively alter the software
they are offering to users, by inserting back-doors or essentially degrading its security,
violates states’ positive obligations to protect the right to respect for private life andcorrespondence. Fourth, it submits that measures requiring the decoding of encrypted
communications cannot be limited to what is necessary in a democratic society, due to theirindiscriminate character and the fact that they inevitably compromise the integrity andsecurity of communications for billions of users globally.

II. How encryption works and why it is important for modern communications
4.

Information security is an enabler of privacy, and in turn, keeps individuals safe.1 As more ofpeople’s lives are lived in the digital realm, communication security tools, such as encryption,

1

More recently, the United Nations Human Rights Council emphasised the importance of encryption for ensuring "theenjoyment of human rights, in particular the rights to privacy, to freedom of opinion and expression and to freedom ofpeaceful assembly and association” in its Resolution on the Right to Privacy in the Digital Age, A/HRC/48/L.9/Rev.1, 7
October 2021.

1

are increasingly important to the protection of human rights, including the right to privacy.
Communication security tools give individuals access to safe and private spaces for personal
development where they can communicate without unwarranted interference.2
5.

Encryption is a way of securing communications using mathematical algorithms that protect
content data while in transmission or storage.3 The method relies on the generation ofmathematically related numbers, unique for each recipient. Those two numbers, called ‘keys’,
are used to cipher and decipher a message. For each communication, one of the two keys,
the ‘public’ one is distributed to anyone that can send a message to the recipient, while thecorresponding ‘private’ key is exclusively used by the recipient. The ‘private’ key must be kept
secure, and not shared with anyone. Advanced applications used for communications inmodern devices, such as mobile phones, generate this pair of keys for their user. By relying
on the “public-key cryptography” technique, anyone can send an encrypted message that
only the recipient can unscramble.4

6.

Encryption, hence, relies on the process of merging a message (‘plaintext’ – the content of
the message) with a passphrase or other data such as a file (commonly referred to as an‘encryption key’) to produce a ‘ciphertext’ that is indecipherable to users who do not have theencryption key. In order to make the message coherent, an individual must use a correct key
to decrypt the ciphertext and convert it back to readable plaintext. In other words, the senderof the message uses their encryption key to turn a readable message into scrambled,
unreadable text. In return, the message’s recipient uses an encryption key to make themessage readable. If the message is intercepted in transit, it will be unreadable.

2

PI,
Securing
Safe
SpacesOnline:Encryption,
onlineanonymity,
and
human
rights,https://privacyinternational.org/sites/default/files/2018-02/Securing%20Safe%20Spaces%20Online_0.pdf.
3
Danielle
Kehl,“Encryption
101”,(Slate,24
February2015),
http://www.slate.com/articles/technology/safety_net/2015/02/what_is_encryption_a_nontechnical_guide_to_protecting_your_digital_communications.html.
4
PI, Ghosts in Your Machine: Spooks Want Secret Access to Encrypted Messages (29 May 2019),
https://privacyinternational.org/news-analysis/3002/ghosts-your-machine-spooks-want-secret-access-encryptedmessages.

2

7.

One of the most robust forms of encryption is end-to-end encryption. With end-to-end
encryption, a user encrypts the contents of a message on their own device and the messaging
service or application sends an encrypted version of that message to a final recipient whothen decrypts the message on their own device.5 As the encryption and decryption of
messages sent and received occurs on users’ devices, full end-to-end encryption provides
only the intended recipients – not even the communications service provider – with accessto the content of the message, making it secure.6

8.

Additionally, several messaging service providers, including Telegram, WhatsApp andSignal, have implemented ‘forward secrecy’,7 which requires that the private keys for aconnection are kept in an ephemeral storage. This basically means that every time a certain
number of messages is sent, or a certain time period has lapsed, a new key is generated.8
Accordingly, the key used to encrypt a previous message cannot be reconstructed once thishas been transmitted or received. This provides users of end-to-end encryption messaging
services with an additional layer of security, because, if a single key is compromised, theadversary will only have access to a limited number of messages. In fact, not even thecommunications services provider will be able to retroactively decrypt past messages. In thecase of Telegram, a new key will be created once “a key has been used to decrypt andencrypt more than 100 messages, or has been in use for more than one week, provided the
key has been used to encrypt at least one message. Old keys are then securely discarded
and cannot be reconstructed, even with access to the new keys currently in use”.99.

It should be noted that end-to-end encryption protects only the content of electronic
messages; the intermediaries would still be able to see the metadata accompanying themessages, such as subject lines, dates, sender, and recipient.10

10. Several actors have underscored the importance of encryption for safeguarding individuals’
privacy, as well as for the effective exercise of other rights, including the right to freedom of
expression.11 In the words of UN High Commissioner for Human Rights “it is neither fanciful
nor an exaggeration to say that, without encryption tools, lives may be endangered. In theworst cases, a Government’s ability to break into its citizens’ phones may lead to the5

Nicole Perlroth, What Is End-to-End Encryption? Another Bull’s-Eye on Big Tech, (New York Times, 19 November2019), https://www.nytimes.com/2019/11/19/technology/end-to-end-encryption.html.
6See, for example, Signal Support, 'How do I know my communication is private?', https://support.signal.org/hc/enus/articles/360007318911-How-do-I-know-my-communication-is-private-; WhatsApp, 'About end-to-end encryption',
https://faq.whatsapp.com/general/security-and-privacy/end-to-end-encryption.
7
Telegram, for example, started supporting perfect forward secrecy as early as December 2014,
https://telegram.org/blog/telegram-me-change-number-and-pfs#perfect-forward-secrecy.
8
WhatsApp, WhatsApp Encryption Overview: Technical white paper (Version 3, October 2020), page 3,
https://scontent.whatsapp.net/v/t39.856234/122249142_469857720642275_2152527586907531259_n.pdf/WA_Security_WhitePaper.pdf?ccb=15&_nc_sid=2fbf2a&_nc_ohc=ciRO7AcIdu8AX_Mi3r&_nc_ht=scontent.whatsapp.net&oh=6fc894bb719bdaf871c1c7f5464a9554&oe=61AE7799.
9
Telegram, 'Perfect Forward Secrecy', https://core.telegram.org/api/end-to-end/pfs.
10
Surveillance Self-Defense, A Deep Dive on End-to-End Encryption: How Do Public Key Encryption Systems Work?
(29 November 2018), https://ssd.eff.org/en/module/deep-dive-end-end-encryption-how-do-public-key-encryptionsystems-work.
11
UN Office of the High Commissioner for Human Rights, Apple-FBI case could have serious global ramifications forhuman rights: Zeid (4 March 2016), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17138.

3persecution of individuals who are simply exercising their fundamental human rights”.12 In theJune 2015 report, the UN Special Rapporteur on the promotion and protection of the right tofreedom of opinion and expression stated that:
Encryption and anonymity, separately or together, create a zone of privacy to protect
opinion and belief. For instance, they enable private communications and can shieldan opinion from outside scrutiny, particularly important in hostile political, social,religious and legal environments. Journalists, researchers, lawyers and civil society
rely on encryption and anonymity to shield themselves (and their sources, clients andpartners) from surveillance and harassment.13
III. Measures that seek to weaken encryption constitute a serious interference with Article
8 of the Convention
11. Despite the substantial weight encryption tools have nowadays attained as enablers offundamental freedoms in the digital era, recent years have witnessed a plethora of efforts bygovernments across the world to introduce measures that seek to undermine these
protections.14 In 2013, the New York Times released documents demonstrating the UnitedStates National Security Agency’s (NSA) efforts to weaken encryption, by deploying a variety
of methods.15 In 2016, Russia enacted anti-terrorism legislation requiring communications
service providers to indiscriminately retain communications content and data and to be able
to provide store, and to submit that data to law-enforcement authorities or security services
in cases specified by law together with information necessary to decode electronic messages
if they are coded.16 In November 2018, UK politician Ian Levy and Crispin Robinson of the
UK General Communications Headquarters (GCHQ) published a proposal for “silently adding
a law enforcement participant to a group chat or call” (‘ghost proposal’).17 Similarly, a draft
discussion paper that was leaked in the summer of 2021 revealed details behind theEuropean Commission’s thinking about “technical solutions to detect child sexual abuse in
end-to-end encrypted communications”.18

12

See UN Human Rights Council, Resolution on the Right to Privacy in the Digital Age, A/HRC/48/L.9/Rev.1, 7 October
2021.
13
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
David Kaye (A/HRC/29/32, 22 May 2015), para 12.
14
Ibid, paras 38-46. See also PI, Securing Safe Spaces Online: Encryption, online anonymity, and human rights,
https://privacyinternational.org/sites/default/files/2018-02/Securing%20Safe%20Spaces%20Online_0.pdf.
15
The New York Times, Secret Documents Reveal N.S.A. Campaign Against Encryption,
https://archive.nytimes.com/www.nytimes.com/interactive/2013/09/05/us/documents-reveal-nsa-campaign-againstencryption.html?ref=us.
16
See Federal Law Number 375-ФЗ of 6 July 2016 on Amendments to the Criminal Code of the Russian Federationand the Criminal Procedure Code of the Russian Federation in terms of establishing additional measures to counter
terrorism and ensure natural harmlessness (Федеральный закон от 6 июля 2016 г. № 375-ФЗ “О внесении
изменений в Уголовный кодекс Российской Федерации и Уголовно-процессуальный кодекс Российской
Федерации в части установления дополнительных мер противодействия терроризму и обеспечения natural
harmlessness”).
17
Ian Levy/Crispin Robinson, Principles for a More Informed Exceptional Access Debate (Lawfare, 29 November 2018),
https://www.lawfareblog.com/principles-more-informed-exceptional-access-debate.
18‘Technical solutions to detect child sexual abuse in end-to-end encrypted communications’,
https://www.politico.eu/wp-content/uploads/2020/09/SKM_C45820090717470-1_new.pdf.

412. Both the provisions contained in the Russian counter-terrorism legislation and theaforementioned ‘ghost proposal’ by the GCHQ would essentially oblige communications
service providers to build workaround that enables a third party to see the plain text of an
encrypted conversation without notifying the participants.19 In order to achieve this result,communications services providers, like Telegram, would have to actively implement two
fundamental changes in the way their end-to-end encryption systems operate: first, service
providers would have to surreptitiously inject a new public key into a conversation in response
to a government demand. This would turn a two-way conversation into a group chat where
the government is the additional participant or add a secret government participant to an
existing group chat. Second, to ensure the government is added to the conversation in secret,service providers would have to change their software so that it would alter the encryption
schemes used and/or mislead users by suppressing the notifications that routinely appear
when a new communicant joins a chat.20
13. If implemented, these measures would pose serious threats to digital security,21 byundermining authentication systems, by introducing potential unintentional vulnerabilities,
and by increasing risks that communications systems could be abused or misused.22 More
importantly, any obligation imposed upon communications services providers to decode
encrypted communications forces the creation of software back-doors which, once found,can be easily exploited by both legitimate and criminal actors. As the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression highlighted in
the 2015 report:
It is a seemingly universal position among technologists that there is no special
access that can be made available only to government authorities, even ones that,in principle, have the public interest in mind. In the contemporary technologicalenvironment, intentionally compromising encryption, even for arguably legitimate
purposes, weakens everyone’s security online.23
14. This Court has repeatedly held that “Article 8 protects, inter alia, the right to identity andpersonal development, and the right to establish and develop relationships with other humanbeings and the outside world” (Breyer v. Germany, App. No. 50001/12, §73). In Barbulescu
v. Romania (App. No. 61496/08), the Grand Chamber of this Court affirmed that the broadinterpretation given to the notion of private life ought to encompass “the right to lead a “privatesocial life”, that is, the possibility for the individual to develop his or her social identity" (§70).
It is also the established case-law of this Court that “[t]apping and other forms of interception

19

Paul Szoldra, ISIS' favorite messaging app may be in jeopardy (Business Insider, 28 June 2016),
https://www.businessinsider.com/russia-anti-encryption-telegram-2016-6?r=US&IR=T.
20
PI, Ghosts in Your Machine: Spooks Want Secret Access to Encrypted Messages (29 May 2019),
https://privacyinternational.org/news-analysis/3002/ghosts-your-machine-spooks-want-secret-access-encryptedmessages.
21
Davis, Terry/Peha, Jon M./Burger, Eric William/Camp, L. Jean/Lubar, Dan, ‘Risking it All: Unlocking the Backdoor to
the Nation's Cybersecurity’ (2014), https://ssrn.com/abstract=2468604.
22
PI, FREAKShow: Why governments meddling with encryption standards hurts us all (5 March 2015),
https://privacyinternational.org/blog/1482/freakshow-why-governments-meddling-encryption-standards-hurts-us-all.
23
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
David Kaye (A/HRC/29/32, 22 May 2015).

5

of telephone conversations represent a serious interference with private life andcorrespondence” (Kruslin v. France, App. No. 11801/85, § 33; Huvig v. France, App. No.
11105/84, § 32; Kopp v. Switzerland, App. No. 23224/94, § 72).
15. Considering the vital role encryption plays for individuals’ modern communications24 and therisks inherent in the measures that seek to undermine it, PI submits that an order requiring acommunications services provider to provide the means for decoding encrypted messages
constitutes a serious interference with Article 8 of the Convention. The Intervener also
submits that, as the Court has rightly held, novel surveillance techniques, such as those that
seek to decode encrypted communications, must be “accompanied by a simultaneousdevelopment of legal safeguards securing respect for citizens’ Convention rights” (Szabó andVissy v. Hungary, App. No. 37138/14, § 68).
IV. By obliging communication services providers to actively provide means to decode
encrypted communications, a state violates its positive obligations under the Convention
16. In order to comply with an obligation to retain encrypted messages for a certain time and beable to effectively decrypt them, communication services providers would have to makeradical changes to their infrastructure and code.25 The latter will undoubtedly undermine theexisting encryption tools offered (by modifying or removing provisions for forward secrecy) by
these providers and compromise the level of security offered to individuals. This is because
these changes, which, in the case of end-to-end encrypted communications, for example, willallow providers to obtain access – for the first time – and, without notifying users, to secretly
insert a third party to existing and future communications, would have to be implemented in
the form of a software update that indiscriminately targets all users of the application orservice in question.26 In other words, the only way for a communication services provider tobe able to store and hand over encrypted messages in a way that can be decoded would be
to pre-emptively insert a ‘secret’ third participant in all existing and future conversations
between users and retain their correspondence until the retention period imposed upon themhas elapsed.
17. As explained above, for messaging applications to be able to suppress notifications when aghost user is added, service providers would need to rewrite the software that every user
relies on. This means that any mistake made in the development of this new function could
create an unintentional vulnerability that affects every single user of that application.27 As
security researcher Susan Landau points out, this “involves changing how the encryption
keys are negotiated in order to accommodate the silent listener, and that means creating a

24

According to a 2016 Flash Eurobarometer survey by the European Commission, an overwhelming majority of 90%
of people in the European Union agree that "they should be able to encrypt their messages and calls, so they are only
read by the recipient", page 43, https://europa.eu/eurobarometer/surveys/detail/2124.
25
Nate Cardozo/Seth Schoen, Detecting Ghosts by Reverse Engineering: Who Ya Gonna Call? (EFF, 23 January2019), https://www.eff.org/deeplinks/2019/01/detecting-ghosts-reverse-engineering-who-ya-gonna-call.
26
Matthew
Green,
On
Ghost
Users
and
Messaging Backdoors(17
December2018),
https://blog.cryptographyengineering.com/2018/12/17/on-ghost-users-and-messaging-backdoors.
27
PI, Ghosts in Your Machine: Spooks Want Secret Access to Encrypted Messages (29 May 2019),
https://privacyinternational.org/news-analysis/3002/ghosts-your-machine-spooks-want-secret-access-encryptedmessages.

6much more complex protocol —raising the risk of an error”.28 A look back at recent news
stories on unintentional vulnerabilities that are discovered in encrypted messaging apps likeiMessage,29 and devices ranging from the iPhone30 to smartphones that run Google’s Android
operating system,31 lend credence to her concerns. Any such unintentional vulnerability
would ultimately open a Pandora’s box of potential exploitation by malicious third parties.
18. Article 8 of the Convention does not only impose negative but “may also impose on the Statecertain positive obligations to ensure effective respect for the rights protected” by it (see, interalia, X and Y v. the Netherlands, App. No. 8978/80, § 23; Von Hannover (no. 2), App. Nos.
40660/08 60641/08, § 98; Hämäläinen v. Finland, App. No. 37359/09, § 62). While this Court
had recognised that states enjoy a certain margin of appreciation in choosing how to realise
the protections enshrined in Article 8, their discretion is not unlimited, especially in a fieldsuch as communications surveillance where the potential for abuse is extremely high (Klass
and Others v. Germany, App. No. 5029/71, § 50; Roman Zakharov v. Russia, App. No.
47143/06, §§ 232-34). In Barbulescu, which concerned the monitoring of an employee’s
communications by his employer, the Grand Chamber held that “domestic authorities did notafford adequate protection of the applicant’s right to respect for his private life andcorrespondence and that they consequently failed to strike a fair balance between theinterests at stake” (§ 141). In finding that there had been a violation of Article 8 of theConvention, the Grand Chamber placed particular emphasis on the proportionality of thesurveillance measures undertaken by the employer, the fact that the “monitoring of thecontent of communications is by nature a distinctly more invasive method” which “requires
weightier justification”, as well as on the international and European law in this area (§ 121).
19. In that regard, it should be underlined that European Union (EU) law imposes a series ofobligations on states to guarantee the privacy and confidentiality of communications, as wellas the security and integrity of information technology systems.32 In particular, Directive (EU)2016/680 of the European Parliament and of the Council of 27 April 2016 establishes rules
for the processing of personal data, also in the context of a criminal investigation.33 Among
28

Susan Landau, Exceptional Access: The Devil is in the Details (Lawfare, 26 December 2018),
https://www.lawfareblog.com/exceptional-access-devil-details-0.
29
Ellen Nakashima, ‘Johns Hopkins Researchers Poke a Hole in Apple’s Encryption’ (Washington Post, 21 March
2016),
https://www.washingtonpost.com/world/national-security/johns-hopkins-researchers-discovered-encryptionflaw-in-apples-imessage/2016/03/20/a323f9a0-eca7-11e5-a6f3-21ccdbc5f74e_story.html?utm_term=.2485b9a99233.
30
Lorenzo Franceschi-Bicchierai/Joseph Cox, ‘The Cat-and-Mouse Game Between Apple and the Manufacturer of an
iPhone Unlocking Tool’ (VICE Motherboard, 18 April 2018), https://motherboard.vice.com/en_us/article/ne95pg/appleiphone-unlocking-tool-graykey-cat-and-mouse-game.
31
Brian Barrett, ‘Millions of Android Devices are Vulnerable Right Out of the Box’ (Wired, 10 August 2018),
https://www.wired.com/story/android-smartphones-vulnerable-out-of-the-box.
32
See, inter alia, Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of
Personal Data (1981, ETS no. 108); Charter of Fundamental Rights of the European Union (2007/C 303/01); Regulation(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons withregard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC(General Data Protection Regulation), OJ 2016 L 119/1; Directive 2002/58/EC of the European Parliament and of theCouncil of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic
communications sector (Directive on privacy and electronic communications), OJ L 201, 31.
33
Directive 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data by competent authorities for the purposes of the prevention,
investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the freemovement of such data, and repealing Council Framework Decision 2008/977/JHA.

7

others, the Directive underlines a series of obligations for law enforcement authorities toensure the security, integrity and confidentiality of personal data by implementing relevantmeasures.34 Finally, the EU Directive on security of network and information systems (theNIS Directive) provides legal measures to boost the overall level of cybersecurity among
member states.35
20. As individuals continue to integrate online communications into the fabric of their lives,
economies and societies,36 safeguarding the security of communications infrastructure andservices becomes increasingly important.37,38 Contrary to these obligations, in order to retain
and be able to decode encrypted communications, communication services providers would
have to fundamentally implement changes to their communication services, by creating
software back-doors, for instance, that would affect all users indiscriminately and,
consequently allow for the unlawful exploitation of their data at a large scale.
21. The Intervener submits that, under these circumstances, requesting the implementation of
measures requiring the retention and decoding of encrypted communications contradicts thenational authorities’ obligations to guarantee the confidentiality and privacy ofcommunications, as well as the security and integrity of information technology systems. By
their very nature, measures that seek to weaken encryption require the exact opposite, acontinuous undermining of security.
V. Measures obliging telecommunication services providers to create software back-doors
for the indiscriminate retention and decoding of encrypted communications cannot belimited to what is “necessary in a democratic society”
22. As discussed above, the implementation of measures by communications service providers
to indiscriminately retain and facilitate access to encrypted communications, such as thoseexamined by the Court in the present case, would require the latter to alter their existing
services by creating back-doors, such as inserting ‘silent listeners’ to conversations, so thatthey can be able to retrospectively access the encrypted messages that have been retained.
As this cannot be targeted to specific users, which might, for instance, present a threat tonational security or serious crime, the implementation of these measures would have toindiscriminately affect everyone. In other words, the creation of backdoors to comply withgovernment measures that seek to weaken encryption directly implies a severe compromiseof millions or billions of users of that service. This is because “a backdoor is a technicalcapability —a vulnerability—that is available to anyone who knows about it and has access
34

Ibid, Article 29 (Security of processing).
Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for ahigh common level of security of network and information systems across the Union, OJ L 194.
36
According to a 2016 Flash Eurobarometer survey by the European Commission, an overwhelming majority of 90%
of people in the European Union agree that "they should be able to encrypt their messages and calls, so they are only
read by the recipient", page 43, https://europa.eu/eurobarometer/surveys/detail/2124.
37
See Investigatory Powers Tribunal (IPT), Privacy International v. Secretary of State for Foreign and Commonwealth
Affairs,
ExpertreportofProfessor
Ross
Anderson(30
September2015),
pages
17-19,
https://privacyinternational.org/sites/default/files/201803/2015.09.30%20Anderson_IPT_Expert_Report_2015_Final.pdf.
38
Ibid,
Witness
Statement
of
Eric
King
(5
October2015),
pages
22
ff,
https://privacyinternational.org/sites/default/files/2018-03/2015.10.05%20Witness_Statement_Of_Eric_King.pdf.
35

8

to it”.39 Therefore, introducing changes to allow for complex new exceptional accessrequirements will inevitably increase the security flaws lurking in the software infrastructure
for decades to come.40
23. The possibility of security flaws designed to give exceptional access to law enforcement being
exploited by hostile actors is far from theoretical.41 Between 1996 and 2006, it appears that
insiders at Telecom Italia enabled the wiretapping of 6,000 people, including business,financial, and political leaders, judges, and journalists.42 From 2004 to 2005, the cell phonesof 100 senior members of the Greek government, including the Prime Minister, the head of
the Ministry of National Defence, the head of the Ministry of Justice, and others were
wiretapped by unknown parties through lawful access built into a telephone switch owned by
Vodafone Greece.43 Similar vulnerabilities have also been exploited by third parties withonerous consequences for millions of individuals globally. WannaCry, for example, wasdeveloped by hackers who effectively managed to exploit software vulnerabilities stockpiledby the United States National Security Agency (NSA),44 and seriously impacted European
infrastructure operators in the sectors of health, energy, transport, finance, and telecoms.45
24. International human rights laws require that any interference with privacy rights must benecessary and proportionate. These principles were authoritatively confirmed in the recent
UN Human Rights Council resolution on the right to privacy in the digital age, which also
“calls upon States not to interfere with the use of [encryption] thereon complying with States’
obligations under international human rights law, and to enact policies that protect the privacyof individuals’ digital communications”.46 In the 2015 report to the UN Human Rights Council
on the use of encryption and anonymity to exercise the rights to freedom of opinion andexpression in the digital age, the UN Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression recommended:States should not restrict encryption and anonymity, which facilitate and often enable
the rights to freedom of opinion and expression. Blanket prohibitions fail to benecessary and proportionate.47
39

Bruce Schneier, Evaluating the GCHQ Exceptional Access Proposal (Lawfare, 17 January 2019),
https://www.lawfareblog.com/evaluating-gchq-exceptional-access-proposal.
40
Harold Abelson/Ross Anderson/Steven M. Bellovin/Josh Benaloh/Matt Blaze/Whitfield Diffie/John Gilmore/Matthew
Green/Susan Landau/Peter G. Neumann/Ronald L. Rivest/Jeffrey I. Schiller/Bruce Schneier/Michael Specter/Daniel J.
Weitzner, ‘Keys Under Doormats: Mandating insecurity by requiring government access to all data andcommunications’, Computer Science and Artificial Intelligence Laboratory Technical Report (MIT-CSAIL-TR-2015-026,
6 July 2015).
41
For a recent list of examples of how software security flaws can be exploited across the globe, see PI, Backdoors,
https://privacyinternational.org/examples/backdoors.
42
Piero Colaprico, ‘”Da Telecom dossier sui Ds” Mancini parla dei politici’ (La Repubblica, 26 January 2007),
http://www.repubblica.it/2006/12/sezioni/cronaca/sismi-mancini-8/dossier-ds/dossier-ds.html.
43
V. Prevelakis and D. Spinellis, ‘The athens affair’ (Spectrum, IEEE, Vol. 44, No. 7, 2007),
http://ieeexplore.ieee.org/xpls/absall.jsp?arnumber=4263124.
44
Zack Whittaker, ‘Two years after WannaCry, a million computers remain at risk’ (TechCrunch, 12 May 2019),
https://techcrunch.com/2019/05/12/wannacry-two-years-on.
45
EU Agency for Fundamental Rights (FRA), Fundamental Rights Report 2018, page 161,https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-surveillance-intelligence-services-vol-2_en.pdf.
46
Resolution on the Right to Privacy in the Digital Age, A/HRC/48/L.9/Rev.1, 7 October 2021.
47
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
David Kaye (A/HRC/29/32, 22 May 2015), para 60.

925. This Court has applied ‘strict necessity’ to interferences with the right to privacy in thesurveillance context. In Szabó and Vissy, it indicated that, given “the potential of cutting-edge
surveillance technologies to invade citizens’ privacy, … any measure of secret surveillance
which does not correspond to [strict necessity requirements] will be prone to abuse” (§ 73).
In addition, when determining whether an interference with the right to privacy was“necessary in a democratic society”, the Court examines whether that interference wasproportionate to the aims pursued. This necessarily involves a balancing exercise between
competing interests (Z v. Finland, App. No. 22009/93, § 94).
26. This Court has recognised on numerous occasions that blanket or indiscriminate measuresthat seriously interfere with privacy may not be justified. In S. and Marper v. the United
Kingdom (App. Nos. 30562/04 and 30566/04), the Grand Chamber held that the collection
and retention of DNA and fingerprints of innocent people was contrary to Article 8. In
particular, the Grand Chamber was “struck by the blanket and indiscriminate nature of thepower of retention in England and Wales” (§ 119), concluding that “the blanket andindiscriminate nature of the powers of retention…fails to strike a fair balance between thecompeting public and private interests” (§ 125). It held that the UK had “overstepped any
acceptable margin of appreciation in this regard” even though the DNA database wasundoubtedly a valuable tool for detecting and prosecuting serious criminals (§ 125).
27. In light of the above, the Intervener submits that measures requiring communication services
providers to facilitate the blanket retention and decoding of encrypted communications are
not compatible with Article 8 of the Convention as they constitute a serious interference withthe right to privacy and are not limited to what is “necessary in a democratic society”.

London, 6 December 2021
On behalf of the Intervener

Ioannis Kouvakas
Legal Officer and Acting General Counsel
Privacy International

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