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European Court of Human Rights bans weakening of secure end-to-end encryption

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Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#81

Post by pjc50 »

M2Ys4U wrote: post #66
Quanttek wrote: post #24

For a better understanding: The Court held (in the circumstances of this case) that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy. The law in question specifically obligated messengers such as Telegram to hand over communications alongside the "information necessary to decrypt electronic messages if they were encrypted". To come to that conclusion, it re…

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling. It's worth noting that UK courts can't overturn Acts of Parli…

> It's worth noting that UK courts can't overturn Acts of Parliament

Eh. I think that grossly understates https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary... ; while it does not remove the law from the books, incompatibility with ECJ rulings does effectively disapply the law.

This is why there's such a fight over the Rwanda bill: https://www.bbc.co.uk/news/uk-politics-68283703 . ECHR is effectively constitutional law in the UK, not an ordinary Act of Parliament. Courts have ruled that deporting people to dangerous countries breaches ECHR. The government is trying to legislate the ""fact"" that Rwanda is ""safe"" in order to circumvent that, because they're not quite yet ready to throw out ECHR entirely and haven't had decades to pack the courts.

Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#82

Post by pjc50 »

seanw444 wrote: post #73
M2Ys4U wrote: post #66

Earlier quoted context omitted.

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling. It's worth noting that UK courts can't overturn Acts of Parli…

> It's worth noting that UK courts can't overturn Acts of Parliament. Interesting. I didn't know this, and as an American, it seems quite odd. Decisions by the parliament are treated as immutable there? Here, if a bill passed by Congress is deemed unconstitutional, it can be struck down by the Supreme Court.

Yeah, I don't think it's quite as simple as commentators are making out, because ECJ rulings have roughly constitutional-level effects in disapplying Acts.

Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#83

Post by denton-scratch »

> The judgement cites using vulnerabilities in the target’s software or sending an implant to targeted devices as examples [of legitimate ways to defeat E2E encryption].

That looks like a bad judgement, to me; exploiting vulnerabilities, or using implants, is generally some kind of criminal hacking. So the court seems to be saying that's not OK, unless you're a government. I.e., governments don't have to obey the law.

There are quite a few EU governments that would prefer not to have to comply with the law. Every EU government gets to plant a judge on the ECHR bench.

Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#84

Post by chippiewill »

M2Ys4U wrote: post #66
Quanttek wrote: post #24

For a better understanding: The Court held (in the circumstances of this case) that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy. The law in question specifically obligated messengers such as Telegram to hand over communications alongside the "information necessary to decrypt electronic messages if they were encrypted". To come to that conclusion, it re…

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling. It's worth noting that UK courts can't overturn Acts of Parli…

The best isn't necessarily a declaration of incompatibility, that's mostly specific to ECHR.

In general if parliament passes legislation that contradicts earlier legislation that wasn't repealed and it wasn't deliberate then a judge can determine that parliament didn't intend to override that earlier legislation and that the new legislation doesn't apply in a given context.

Parliamentary supremacy exists, but only where parliament takes a deliberate action.

Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#86

Post by Georgelemental »

sackfield wrote: post #46

It's nice to know this also applies to the UK even after Brexit (still a member of the ECHR).

Azerbaijan is in the ECHR too; doesn't stop them from imprisoning political dissidents, employing slave labor, committing war crimes, attacking other ECHR members, or performing ethnic cleansing.

Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#87

Post by M2Ys4U »

pjc50 wrote: post #81
M2Ys4U wrote: post #66

Earlier quoted context omitted.

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling. It's worth noting that UK courts can't overturn Acts of Parli…

> It's worth noting that UK courts can't overturn Acts of Parliament Eh. I think that grossly understates https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary... ; while it does not remove the law from the books, incompatibility with ECJ rulings does effectively disapply the law. This is why there's such a fight over the Rwanda bill: https://www.bbc.co.uk/news/uk-politics-68283703 . ECHR is effectively consti…

Well, yes, there's some nuance here. Where there's an Act of Parliament that says courts can dis-apply other Acts of Parliament then the courts can do so.

But the Human Rights Act does not do this, even though it has quasi-constitutional status, and as far as I know now that the European Communities Act has been repealed no Act of Parliament does this.

A better case to cite than Factortame would be R (Jackson) v Attorney General, where the House of Lords (in its judicial function before that was removed to the Supreme Court) entertained the idea that in extremis parliamentary sovereignty was not absolute.

If the government continues its showdown over Rwanda the Supreme Court might be forced to re-visit that idea.

But the law as it is applied right now means that courts cannot overturn actsof Parliament.

Re: European Court of Human Rights bans weakening of secure end-to-end encryption

#89

Post by TillE »

seanw444 wrote: post #73
M2Ys4U wrote: post #66

Earlier quoted context omitted.

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling. It's worth noting that UK courts can't overturn Acts of Parli…

> It's worth noting that UK courts can't overturn Acts of Parliament. Interesting. I didn't know this, and as an American, it seems quite odd. Decisions by the parliament are treated as immutable there? Here, if a bill passed by Congress is deemed unconstitutional, it can be struck down by the Supreme Court.

Judicial review isn't necessarily an obvious or completely desirable concept. It's not in the US Constitution either, and Marbury v. Madison is still somewhat controversial.
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