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New Law Library Reports Cover Access to Encrypted Communications and Intelligence Gathering

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Security lock console background. Photo by Flickr user Yuri Samoilov, Mar. 22, 2014. Used under Creative Commons License,
Security lock console background. Photo by Flickr user Yuri Samoilov, Mar. 22, 2014. Used under Creative Commons License,

More and more internet traffic is encrypted. Encryption is a method of protecting electronic information by converting it into an unintelligible form (encoding) so that it can only be decoded with a key. Google stated in its latest transparency report that 85% of requests from around the world to Google’s servers used encrypted connections in September 2016, up from 47% on December 28, 2013. The percentage of encrypted traffic that Google receives varies by country. Mexico has the highest number with 93%, whereas 79% of traffic that Google receives from the United States is protected by encryption. Encryption is not only used to protect sensitive data like bank information, but it is also used by terrorists and criminals to keep intelligence and law enforcement agencies from understanding their communications. There is, therefore, ongoing discussion about the ability of these agencies to access and decode encrypted communications for the purposes of national security and law enforcement.

A recently published Law Library of Congress report titled “Government Access to Encrypted Communications” surveys whether and how the governments in twelve countries and the European Union can gain access to encrypted communications. It focuses on whether the government can require companies to decrypt encrypted communications or provide the government with the means to do so, but also provides additional information on monitoring and intercepting communications in general. A brief comparative summary is included.

How the "Herald" does it. Eugene Zimmerman (artist). May 6, 1885. Illustration shows Nicholas II and General Obruchev looking over a "War Map" spread on a table, with "Russia" on one side, "England" on the other, and "Afghanistan" between them; beneath the table, having come through a "Nihilists' Private Trap Door", is "the Herald's Special Correspondent" with an oversized right ear listening and holding a notebook labeled "N.Y. Herald". Library of Congress Prints and Photographs Division.
How the “Herald” does it. Eugene Zimmerman (artist). May 6, 1885. Library of Congress Prints and Photographs Division.

A second report on “Foreign Intelligence Gathering Laws” covers a related topic and updates a report issued by the Law Library of Congress in 2014. It contains information on laws regulating the collection of intelligence in the European Union, Belgium, France, Germany, the Netherlands, Portugal, Romania, Sweden, and the United Kingdom. A comparative summary is included. The report shows the measures taken by individual countries to maintain a balance between law enforcement and national security needs on the one hand and rights to privacy and personal data protection on the other.

The updated report incorporates, inter alia, information on France’s new Law on Intelligence from 2015 and describes legislative proposals currently under consideration in the United Kingdom, Romania, and the Netherlands.

We invite you to review these reports along with the many other multinational and single country reports, including several on privacy rights and data protection, available on the Law Library’s website.

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