A recent document leaked to Wired shows Spain vigorously advocating for a ban on end-to-end encryption within the European Union. The confidential document, a draft of a proposed cybersecurity law, presses for the creation of “backdoors” in encrypted communications. This would empower law enforcement to access encrypted messages without user knowledge or consent – a move that has stirred an uproar among privacy advocates.
Critics argue that such a step would severely compromise online communication security and inadvertently equip criminals and terrorists with loopholes to exploit. They also contend that law enforcement already has sufficient tools for investigating crimes, making the proposed law an unnecessary overreach.
Spain’s government, however, defends the proposal, citing national security needs. The fate of the proposal is currently uncertain as it undergoes review by the European Parliament and the Council of the European Union.
Analyzing this development critically, it is vital to underscore the importance of end-to-end encryption in safeguarding free speech and facilitating the unfettered exchange of ideas. This encryption technology ensures private, secure communication, free from the specter of government surveillance or censorship. Without it, government entities would find it easier to trace, monitor, and potentially suppress people’s communications, and to stifle dissent.
Spain’s proposed ban on end-to-end encryption represents a perilous and misguided bid to exert control over people’s online communications. The proposal has the potential to chill free speech and impede individuals’ ability to organize and express themselves online.
The European Union must stand firm against Spain’s proposal to uphold the right to privacy and free speech. End-to-end encryption is a foundational human right, critical to the preservation of freedom and democracy.
Let’s consider specific examples of how end-to-end encryption bolsters free speech and the exchange of ideas:
It enables individuals to communicate fearlessly, free from government surveillance or censorship.
It facilitates the sharing of sensitive information and ideas, such as political dissent or religious beliefs, which may not be freely expressed in public.
It provides a secure platform for organizing and mobilizing for social change.
It allows people to access vital resources and information, like independent media news or medical information, which they might not otherwise have access to.
In conclusion, end-to-end encryption is an essential bulwark of our freedom and democracy. The European Union must reject Spain’s proposal to ban it, ensuring the continued protection of our fundamental rights.
Oscar Wachtler
Guest Writer
Oscar Wachtler is a passionate hacktivist and open-source enthusiast based in Germany. With a keen interest in digital privacy and security, Oscar actively contributes to numerous open-source projects on GitHub, helping to create a more transparent and decentralized digital landscape. When he’s not busy advocating for a privacy-conscious future or writing about the latest developments in the field, you’ll find him at his local Kaffeeshop, indulging in his addiction to rich espresso and scrumptious baked goods. Oscar’s unwavering dedication to the cause and his spirited pursuit of a better digital world make him a vital voice in the ongoing battle for privacy rights.
In the recent ruling[1] by the Supreme Court regarding Gonzalez v. Google, the courts have elected not to reinterpret the foundational internet law Section 230, deeming it irrelevant to the case’s resolution. This decision came concurrently with another judgment in Twitter v. Taamneh, where the court determined that Twitter had not knowingly assisted terrorism.[2]
The Gonzalez case revolved around the family of a woman tragically lost in a terrorist attack. They pointed an accusing finger at Google, alleging that the tech giant had transgressed the law by recommending terrorist content on YouTube, thereby contributing to the events leading up to the attack. The family’s objective was to hold Google accountable under anti-terrorism laws.
However, the court found the underlying complaints in the Gonzalez case to be tenuous, independent of Section 230’s involvement. Consequently, the complaint was dismissed, primarily due to the court’s unanimous decision in Twitter v. Taamneh, a case with striking similarities. In this instance, a family claimed that Twitter had supported terrorists by failing to expunge them from the platform before a fatal attack. Yet, Justice Clarence Thomas, who authored the ruling, asserted that the claims were insufficient to establish that Twitter had materially assisted ISIS in the attack under scrutiny.
Justice Thomas argued that imposing liability based on aiding and abetting could have far-reaching implications. He emphasized that such an interpretation could make ordinary merchants liable for any misuse of their products and services, regardless of their connection with the wrongdoer. This might include mail delivery personnel or email service providers becoming responsible for the contents of their messages, or witnesses to a robbery becoming liable for the theft. He stated that the defendants, in this case, did not seem to have treated ISIS any differently from their other billion-plus users. Their relationship with ISIS and its supporters was described as being at arm’s length, passive, and largely indifferent.
Drawing a parallel, Justice Thomas likened social platforms like Twitter to older forms of communication. He acknowledged that nefarious actors like ISIS might use platforms for illegal and sometimes horrendous purposes. However, he pointed out that this could also be said of cell phones, email, or the internet in general. The ruling contended that internet or cell service providers should not be held culpable merely for providing their services to the public. They should not normally be accused of aiding and abetting illegal activities, such as drug deals conducted over cell phones, even if the provider’s features facilitated the transaction.
The Ford Motor Co. lawsuit serves as a noteworthy example that underlines the importance of this ruling. In this case, a Georgia jury delivered a verdict against Ford, resulting in the largest monetary award in state history – $1.7 billion – pertaining to a wrongful death lawsuit. The lawsuit was initiated by the children of a couple who perished in a 2014 rollover crash after a tire blew out on their Ford Super Duty F-250 pickup. The jury found that Ford had sold 5.2 million “Super Duty” trucks with fragile roofs that could collapse on the occupants during rollovers, a defect that was present in all models from 1999 to 2016. The lawsuit also implicated Pep Boys for installing the wrong size tires on the truck, which led to the blowout.
Despite the enormity of the damages awarded, this case highlights a crucial point. The lawsuit against Ford did not accuse the company of causing or contributing to the drunk driving incident. The focus was on the vehicle’s design flaws and the installation of incorrect tires, factors that were directly within the control of Ford and Pep Boys. This case underscores that manufacturers, much like internet service providers, are not typically held accountable for the misuse of their products. Unless it can be proven that they knowingly facilitatedillegal activities or intentionally provided faulty products, the liability for misuse rests on the user.
Returning to the rulings, the allegations in Gonzalez v. Google were found to be very similar to those in Twitter v. Taamneh. The court stated, “Since we hold that the complaint in that case fails to state a claim for aiding and abetting … it appears to follow that the complaint here likewise fails to state such a claim.” Therefore, the court declined to address the application of Section 230 to a complaint that seems to hold little, if any, plausible claim for relief.
In response to the decision, Google’s public policy team tweeted that many companies, scholars, creators, and civil society groups who stood with them in this case would find reassurance in this result. They pledged to continue protecting free speech online, combatting harmful content, and supporting businesses and creators who benefit from the internet[3].
Both rulings left many specifics unaddressed, but the Twitter ruling did tackle a significant question from Gonzalez: whether recommendation algorithms actively encourage certain types of content. Justice Thomas expressed doubt, arguing that the plaintiffs’ claim based on the defendants’ “provision of the infrastructure which provides material support to ISIS” seemed more like passive aid than active assistance. The algorithms were part of that infrastructure, sorting content by information and inputs provided by users and the content itself. Therefore, matching some ISIS content with some users did not transform the defendants’ passive assistance into active abetting.
This interpretation could potentially undermine a common argument for imposing special liability on social media: that recommendation systems do more than just host content and actively encourage it. The ruling’s reasoning implies that mere recommendation on an “agnostic” basis, as opposed to selectively promoting content provided by a specific terrorist group, does not constitute active encouragement.
The verdict was welcomed by civil liberties activists. David Greene, Civil Liberties Director at the Electronic Frontier Foundation, lauded the court for not addressing or weakening Section 230, which he described as a vital part of the modern internet’s architecture. He also commended the court’s finding that an online service cannot be held liable for terrorist attacks simply because their services are used by terrorist organizations in the same way they are used by millions of organizations globally.
Despite the recent rulings, it is evident that Supreme Court justices have shown an interest in reconsidering the liability of online platforms. Earlier this year, during a set of oral arguments, justices appeared reluctant to alter Section 230, raising concerns about whether it would disrupt core aspects of online communication. While these rulings may not be the final word on the legal status of internet services, the court has indicated a willingness to further explore the subject, particularly concerning laws banning internet moderation in Texas and Florida.
In conclusion, these rulings underscore the importance of protecting free speech and the exchange of ideas on the internet. Holding platforms liable for the misuse of their services by individuals or groups could have significant implications, potentially stifling free speech and hindering the exchange of ideas. Much like Ford was not held liable for the actions of a drunk driver, internet platforms should not be held responsible for the misuse of their services by others. Instead, responsibility should be placed on those who misuse these services for nefarious purposes.
Policy, Google Public. “Countless Companies, Scholars, Creators and Civil Society Groups Who Joined with Us in This Case Will Be Reassured by This Result. We’ll Continue to Safeguard Free Expression Online, Combat Harmful Content, and Support Businesses and Creators Who Benefit from the Internet. Https://T.Co/W7ubx94ocq.” Twitter, 18 May 2023, https://twitter.com/googlepubpolicy/status/1659243838731321356.
Lukas, a trailblazer in the world of tech, spends the majority of his time immersed in coding and hacking, relentlessly fine-tuning the digital landscape. His considerable talents have been channeled into open-source platforms, specifically those geared towards the enhancement of 3D-printed firearms, in the spirit of fostering innovation and safeguarding individual liberties. A strong advocate for the dissolution of centralized bureaucratic entities, he is a vocal critic of government-controlled ‘three-letter agencies’. An astute crypto investor, Lukas’ financial acumen has seen him consistently outperform the NASDAQ in recent years, a testament to his unconventional yet highly effective investment strategies.
