We all laughed when lawyer cat, the U.S. lawyer who logged onto a virtual court hearing using a cat filter, desperately told the judge, “I’m not a cat!” It was a much-needed laugh in a hard year, but the incident holds a serious lesson: lawyers defending vulnerable clients aren’t always tech-savvy. When governments undermine encryption and fail to protect our privacy online, they expose civil society — including human rights lawyers — to digital attacks. The latest United Nations (U.N.) Human Rights Council report and new addendum from Clément N. Voule, the U.N. expert on the rights to freedom of peaceful assembly and association, spotlights these risks. The report as a whole not only adds weight to the global campaign to end internet shutdowns, it also bolsters the argument for strong digital security defenses to protect access to justice and the right to protest.
In this post we take a close look at the parts of Voule’s report that are relevant for human rights lawyers and their clients. These lawyers represent activists, dissidents, and others who put their lives on the line to stand up for human rights. People already targeted for surveillance, censorship, and oppression — from the citizens of Myanmar to Black Lives Matter protesters in the U.S. — are most at risk of rights violations. They require a zone of privacy for free expression, assembly, and association. We strongly support Voule’s mandate and hope to help foster the development of global norms, laws, and policies that will enable these attorneys to do their invaluable work.
Secure communications are vital for free assembly, association, and protest
The Special Rapporteur raises the alarm regarding the indiscriminate surveillance of those exercising their right of peaceful assembly. Voule specifically flags the use of intrusive online surveillance to monitor or interfere with lawyer-client communications. Citing previous Human Rights Council resolutions, Voule reiterates that “authorities must ensure the confidentiality of all communications between lawyers and their clients,” and “if needed, technical solutions to secure and protect [such communications], including measures for encryption and anonymity, must be allowed.” He also supports an “an immediate moratorium on privately developed surveillance technologies” that would be lifted once a “human rights-compliant regime has been established.”
Voule becomes the fifth U.N. human rights expert calling for a moratorium on the surveillance tech trade, joining:
- Michelle Bachelet, the U.N. High Commissioner for Human Rights,
- David Kaye, the former U.N. Special Rapporteur on Freedom of Opinion and Expression,
- Agnes Callamard, the former U.N. Special Rapporteur on summary executions and extrajudicial killings, and
- E. Tendayi Achiume, the U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance.
Special Rapporteur Voule’s recommendations include asking states to “establish independent mechanisms to monitor and investigate the use of digital technologies for surveillance in the context of [these rights] with a view to ensuring that any such use is consistent with the principles of legality, necessity, and legitimacy of objective.”
Access Now welcomes Voule’s warning regarding the threat of online attacks and the risks of pervasive surveillance for access to justice in the context of digital-age protests. We highlighted the importance of encryption and anonymity in our submitted inputs for Voule’s report, and we hope to contribute further to the global conversation on the need for states to protect privacy and defend encryption. Lawyers in particular must have the ability to encrypt their communications to protect clients exercising their right to protest, especially given the unprecedented risk of data breaches that are undermining the confidentiality of lawyer-client communications worldwide.
Why encryption is key for the “zone of privacy” and lawyering in the digital age
As news reports show, lawyer-inmate telephone conversations are often wrongfully recorded, and lawyer-client communications are often specifically the target of surveillance. Encryption helps lawyers protect client data, but its importance extends beyond the lawyer-client relationship. As former Special Rapporteur David Kaye has stated, it is vital for the “zone of privacy” everyone needs to express themselves freely. As Voule also recognizes, state surveillance is restricting that zone, and the spying is often conducted with the help of tech companies.
During the COVID-19 pandemic, lawyers increasingly rely on digital communications to provide secure and timely legal advice to their clients. Yet statistics show that lawyers and law practices are susceptible to data breaches and cyberattacks. This can have extremely serious consequences, as a breach can decimate attorney-client privilege. That is why lawyers and professional associations must put more emphasis on digital security, and states must ensure they are free to use privacy-enhancing technologies, including encryption.
Using robust end-to-end encryption is one of the best ways people exercising their right to peaceful assembly can protect themselves from governments’ arbitrary and unlawful interference or attacks. But as Kaye warned in his 2015 report, “states have regularly attempted to ban or intercept anonymous communications in times of protest.” Such attempts continue today. In addition, more tech companies are facilitating states’ interference by collecting data on people’s associations, both online and off.
In the wake of Voule’s report, we urge all U.N. member states to recognize the risks of digital age lawyering and take steps to protect the use of encryption and other tools for privacy and anonymity. Likewise, lawyers’ and judges’ associations and accreditation bodies should take an active role in using and promoting the use of these tools.
At Access Now, we pledge to do our part to promote lawyers’ use of encryption. Since 2016, we have managed the Digital Rights Litigators Network — now comprising 120 litigators and experts — to advance digital rights by strategically engaging the courts on a local, regional, and global level. Our aim is to help litigators learn from one another’s experiences and develop strategy and tactics together. The plaintiffs these lawyers represent are often the targets of online attacks. To ensure they stay updated on necessary digital security practices, we plan regular briefings on security threats and ways to keep themselves and their clients safe.
When you protect lawyers and legal observers, you protect the people
It’s not only litigators who need strong digital security. When states crack down on protests, it is legal observers who monitor and document police conduct, and flag potential violation of protesters’ rights during demonstrations. They help ensure accountability and provide access to justice when rights are violated. In the U.S., their rights are constitutionally protected under the First Amendment. But during the Black Lives Matter protests last year, the Trump administration deployed militarized police forces, and frequently arrested and violently attacked legal observers. This must never be tolerated.
The surveillance Voule identifies as a threat to the rights to free association and assembly are compounded for certain groups and individuals. People are targeted and marginalized based on multiple and intersecting identities, including on the basis of race, ethnicity, gender, sexual orientation, religion, and more. Law enforcement agencies routinely abuse surveillance to monitor lawful protests of marginalized communities.
That is why we joined the USC Gould School of Law’s International Human Rights Clinic and Foley Hoag LLP (on behalf of Access Now) to submit information to the U.N. High Commissioner for Human Rights for a new report on the “Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers.” Our submission, delivered to the Human Rights Council last week, highlights the disproportionate surveillance of Black Lives Matter activists in the U.S.
We strongly support the High Commissioner’s call on states to “honor their obligations to protect those standing up against racism from, [among others], being surveilled both within and outside the context of assemblies.” We also encourage more U.N. experts to join Voule in the call for an immediate moratorium on the use of surveillance technology.
What happens next
We want to see states follow Voule’s recommendations for ending internet shutdowns and defending encryption, and more lawyers, lawyer associations, and other groups promote strong encryption as a vital tool for protecting themselves and their clients.
We also hope to see the Special Rapporteur’s findings boost global efforts to bring transparency and accountability to the surveillance tech sector. In his report, Voule specifically calls on investors in spyware and intelligence firms to recognize their role in facilitating human rights abuses around the world.
We echo that call. As we’ve been arguing, it’s time for investors in the Israeli digital surveillance firm Cellebrite, for example, to demand the company come clean about the use of its products against civil society. Those who can “greenlight” Cellebrite’s planned public offering should nix the deal until the company demonstrates real human rights compliance. Investors in U.S. companies should demand that the companies strictly abide by the new U.S. State Department guidelines on the export of technology with surveillance capabilities.
We will continue to monitor developments and keep you updated.