European justice and home affairs ministers have their latest challenge cut out for them: deciding on a collective response to Internet companies’ use of strong encryption, and on whether to insist on legislation that necessitates backdoors in end-to-end encryption so that the region’s law enforcement agencies may have access to user data on-demand.
Just last summer, home affairs ministers from France and Germany sent out a call for the need for a law that would empower courts to demand Internet companies to decrypt data on request. This call was echoed earlier this week by UK Home Secretary, Amber Rudd, in light of the London attack. According to her, intelligence services must be able to access readable data from apps such as end-to-end encrypted WhatsApp, saying:
There should be no place for terrorists to hide.
Yesterday, EU Justice Commissioner Vera Jourova also addressed the topic of encrypted apps, speaking during a press conference conducted after a meeting of the Justice and Home Affairs Council in Brussels. According to a Euractiv report of her comments, the EC has already decided to put forward measures this summer with the objective of forcing what she called a “swift, reliable response” from encrypted apps when asked to hand over decrypted data.
According to reports, Jourova is also holding “very intensive” talks with big Internet companies about giving police access to encrypted data.
However, as per a Commission spokeswoman’s statement, no decisions have been made about how to approach encryption at this stage, adding that discussions are not yet “very advanced”. She said:
On encryption the discussions are still ongoing. And for now there’s no legislative plan.
She was unable to confirm whether WhatsApp is one of the companies Jourova is negotiating with.
When questioned further about the ongoing talks between EU ministers on encryption, the spokeswoman confirmed that agreement exists between them that the technology presents a challenge for law enforcement, although there is no clarity on what measures might come about in the future. She said:
Yesterday all the ministers agreed that this is an issue and that criminal justice in cyberspace is being challenged by this, but for now no one really came up with any concrete solution. There’s a working group that’s organized by the Commission, bringing experts from all over Europe and from different [sectors], technology but also justice, to discuss it together. We’re gathering evidence and information on this, and this will be discussed again in June.
The spokeswoman also noted that since the Member States set their own laws pertaining to national security issues, there are further complications for having an EU-wide response.
The UK has already legislated to be able to demand decryption on request and block use of e2e encryption in the Investigatory Powers Act, which became law last year. She said:
Everyone agrees that if there is a crime, if the data is encrypted, it has to be handed in to the authorities in a readable way. But the issue is very, very complex in the sense that matters of national security are also Member State competence so there’s no competence at the EU level. So that’s also a point that’s complicating the discussions here.
The EU’s anti-terrorism coordinator, Gilles de Kerchove, also previously commented to Euractiv:
We need a very strong internet — we don’t want to create vulnerabilities, but also emphasizing that security services, police, and law enforcement agencies must be able to get access to the content, which is important for security reasons. The question is, can you open a backdoor for Europol only, or would that at the same time create a vulnerability and open a backdoor for the Russian mafia or third party state spies? This is part of the discussion but we are not there yet. There is internal work — it’s a tricky issue.
Meanwhile, the Commissions’ technology policy chief recently tweeted that he’s still against the idea of mandating backdoors and weakening encryption, although it is interesting to note that in his earlier comments back in November, he also admitted to the issue being not so black and white where the interests of law enforcement are at stake.