TY - JOUR

T1 - A Right to Encryption in the European Union’s Charter of Fundamental Rights

AU - Davis, Peter Alexander Earls

PY - 2024/12

Y1 - 2024/12

N2 - This article posits the existence of a 'right to encryption' within the European Charter of Fundamental Rights ('Charter'), contending that it prohibits the legislative incorporation of encryption 'backdoors' in ubiquitous applications and devices as a matter of EU law. The argument draws from the Court of Justice of the European Union's jurisprudence on the essence of the right to respect for private life under Article 7 of the Charter. Other avenues for locating such a right, including the right to personal data protection and freedom of expression, are also explored. However, it is concluded that the right to encryption is most firmly anchored in the essence of Article 7.Timely amidst the EU's growing interest in tackling the so-called ‘going dark’ problem caused by ubiquitous forms of encryption such as end-to-end encryption, the article contends that the right extends to Member States, thereby protecting against domestic laws that seek to undermine robust implementations of encryption. European lawmakers are urged to pursue options to mitigate the apparent ‘going dark’ phenomenon that are workable in practice and, ultimately, lawful.

AB - This article posits the existence of a 'right to encryption' within the European Charter of Fundamental Rights ('Charter'), contending that it prohibits the legislative incorporation of encryption 'backdoors' in ubiquitous applications and devices as a matter of EU law. The argument draws from the Court of Justice of the European Union's jurisprudence on the essence of the right to respect for private life under Article 7 of the Charter. Other avenues for locating such a right, including the right to personal data protection and freedom of expression, are also explored. However, it is concluded that the right to encryption is most firmly anchored in the essence of Article 7.Timely amidst the EU's growing interest in tackling the so-called ‘going dark’ problem caused by ubiquitous forms of encryption such as end-to-end encryption, the article contends that the right extends to Member States, thereby protecting against domestic laws that seek to undermine robust implementations of encryption. European lawmakers are urged to pursue options to mitigate the apparent ‘going dark’ phenomenon that are workable in practice and, ultimately, lawful.

KW - Faculty of Law

KW - encryption

KW - privacy

KW - data protection

KW - surveillance

KW - backdoor

M3 - Journal article

VL - 30

JO - Columbia Journal of European Law

JF - Columbia Journal of European Law

SN - 1076-6715

IS - 1

ER -