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End-to-End Messaging Encryption Regulation – A European Issue

Balance scale showing the balance between privacy and law enforcement in EU regulation of end-to-end encrypted messaging.

The Controversy of End-to-End Messaging Encryption in the European Union

In a world where online privacy is increasingly threatened, the European Union finds itself at the center of a controversy: Reducing the negative effects of end-to-end encryption of messaging services. This technology, which ensures that only the sender and recipient can read the content of messages, is now being questioned by some EU member states.

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Discover our new Cyberculture article about a End-to-End Messaging Encryption European Regulation. Authored by Jacques Gascuel, a pioneer in Contactless, Serverless, Databaseless, Loginless and wireless security solutions. Stay informed and safe by subscribing to our regular updates.

Regulation of Secure Communication in the EU

The European Union is considering measures to regulate secure messaging practices. This technology ensures that only the sender and recipient can read the messages. However, some EU member states are questioning its impact on law enforcement capabilities

Control of Secure Messaging and Fragmentation

If the EU adopts these proposals, it could fragment the digital landscape. Tech companies might need to choose between complying with EU regulations or limiting their encrypted messaging services to users outside the EU. This could negatively affect European users by reducing their access to secure communication tools.

Why the EU Considers End-to-End Messaging Encryption Control

Law enforcement agencies across 32 European states, including the 27 EU member states, are expressing concerns over the deployment of end-to-end encryption by instant messaging apps. Their fear is that this could hinder the detection of illegal activities, as companies are unable to monitor the content of encrypted messages. This concern is one of the key reasons why the EU is considering implementing control over end-to-end message encryption.

Exploring the Details of the Proposed Regulation on Encrypted Messaging

EU Commissioner for Home Affairs, Ylva Johansson, has put forward a proposal that could significantly impact the tech industry. This proposal actively seeks to mandate tech companies to conduct thorough scans of their platforms, extending even to users’ private messages, in an effort to detect any illicit content.

However, this proposal has not been without controversy. It has sown seeds of confusion and concern among cryptographers and privacy advocates alike, primarily due to the potential implications it could have on secure messaging. The balance between ensuring security and preserving privacy remains a complex and ongoing debate in the face of this proposed regulation.

Background of the EU Proposal on Secure Messaging

A significant amount of support can be found among member states for proposals to scan private messages for illegal content, particularly child pornography, as shown in a European Council document. Spain has shown strong support for the ban on end-to-end messaging encryption.

Misunderstanding the Scan Form

Out of the 20 EU countries represented in the document, the majority have declared themselves in favor of some form of scanning encrypted messages. This proposal has caused confusion among cryptographers and privacy advocates due to its potential impact on secure communication protocols.

The Risks of Ending End-to-End Messaging Encryption

Privacy advocates and cryptography experts warn against the inherent risks of weakening encryption. They emphasize that backdoors could be exploited by malicious actors, thus increasing user vulnerability to cyberattacks.

Position of the European Court of Human Rights (ECHR) on Secure Messaging

The European Court of Human Rights (ECHR) has taken a stance on end-to-end messaging encryption. In a ruling dated February 13, the ECHR declared that creating backdoors in end-to-end encrypted messaging services like Telegram and Signal would violate fundamental human rights such as freedom of expression and privacy. This ruling highlights the importance of end-to-end messaging encryption as a tool for protecting privacy and freedom of expression within the context of human rights in Europe.

Messaging Apps’ Stance on End-to-End Encryption Regulation

As the European Union considers implementing control over end-to-end message encryption, several messaging apps have voiced their concerns and positions. Here are the views of major players in the field:

Signal’s Position on End-to-End Messaging Encryption Regulation

Signal, a secure messaging app known for its commitment to privacy, has taken a strong stance against the proposed regulation. Meredith Whittaker, president of Signal, has described the European legislative proposal as “surveillance wine in security bottles.” In the face of this legislative proposal, Signal has even threatened to cease its activities in Europe. Despite this, Whittaker affirmed that the company would stay in Europe to support the right to privacy of European citizens.

WhatsApp’s Concerns on End-to-End Messaging Encryption Regulation

WhatsApp, another major player in the messaging app field, has also expressed concerns about the proposed regulation. Helen Charles, a public affairs representative for WhatsApp, expressed “concerns regarding the implementation” of such a solution at a seminar. She stated, “We believe that any request to analyze content in an encrypted messaging service could harm fundamental rights.” Charles advocates for the use of other techniques, such as user reporting and monitoring internet traffic, to detect suspicious behavior.

Twitter’s Consideration of End-to-End Messaging Encryption

In 2022, Elon Musk discussed the possibility of integrating end-to-end encryption into Twitter’s messaging. He stated, “I should not be able to access anyone’s private messages, even if someone put a gun to my head” and “Twitter’s private messages should be end-to-end encrypted like Signal, so that no one can spy on or hack your messages.”

Mailfence’s Emphasis on End-to-End Encryption

Mailfence, a secure email service, has declared that end-to-end encryption plays a crucial role in setting up secure messaging. They believe it’s extremely important to protect online privacy.

Meta’s Deployment of End-to-End Encryption

Meta (formerly Facebook) recently deployed end-to-end encryption by default for Messenger conversations. This means that only the sender and recipient can access the content of the messages, with Meta being unable to view them.

Other Messaging Apps’ Views on End-to-End Encryption

Other messaging apps have also expressed their views on end-to-end encryption:

Europol’s View

The heads of European police, including Europol, have expressed their need for legal access to private messages. They have emphasized that tech companies should be able to analyze these messages to protect users. Europol’s director, Catherine De Bolle, even stated, “Our homes are becoming more dangerous than our streets as crime spreads online. To ensure the safety of our society and our citizens, we need this digital environment to be secure. Tech companies have a social responsibility to develop a safer environment where law enforcement and justice can do their job. If the police lose the ability to collect evidence, our society will not be able to prevent people from becoming victims of criminal acts”.

Slack’s View

Slack, a business communication platform, has emphasized the importance of end-to-end encryption in preserving the confidentiality of communications and ensuring business security.

Google’s View

Google Messages uses end-to-end encryption to prevent unauthorized interception of messages. Encryption ensures that only legitimate recipients can access the exchanged messages, preventing malicious third parties from intercepting or reading conversations.

Legislative Amendments on End-to-End Messaging Encryption

Several proposed amendments related to end-to-end messaging encryption include:

Encryption, especially end-to-end, is becoming an essential tool for securing the confidentiality of all users’ communications, including those of children. Any restrictions or infringements on end-to-end encryption can potentially be exploited by malicious third parties. No provision of this regulation should be construed as prohibiting, weakening, or compromising end-to-end encryption. Information society service providers should not face any barriers in offering their services using the highest encryption standards, as this encryption is crucial for trust and security in digital services.

The regulation permits service providers to select the technologies they employ to comply with detection orders. It should not be interpreted as either encouraging or discouraging the use of a specific technology, as long as the technologies and accompanying measures adhere to the requirements of this regulation. This includes the use of end-to-end encryption technology, a vital tool for ensuring the security and confidentiality of users’ communications, including those of children.

When implementing the detection order, providers should employ all available safeguards to ensure that the technologies they use cannot be exploited by them, their employees, or third parties for purposes other than compliance with this regulation. This helps to avoid compromising the security and confidentiality of users’ communications while ensuring the effective detection of child sexual abuse material and balancing all fundamental rights involved. In this context, providers should establish effective internal procedures and safeguards to prevent general surveillance. Detection orders should not apply to end-to-end encryption.

Advantages and Disadvantages of End-to-End Messaging Encryption

Advantages:

  • Privacy: End-to-end messaging encryption protects users’ privacy by ensuring that only the participants in the conversation can read the messages.
  • Security: Even if data is intercepted, it remains unintelligible to unauthorized parties.

Disadvantages:

  • Limitation of Detection of Illegal Activities: Law enforcement agencies fear that end-to-end messaging encryption hinders their ability to fight the most heinous crimes, as it prevents companies from regulating illegal activities on their platforms.

Technical Implications of Backdoors in End-to-End Messaging Encryption

The introduction of backdoors in encryption systems presents significant technical implications. A backdoor is a covert mechanism deliberately introduced into a computer system that allows bypassing standard authentication processes. It can reside in the core of a software’s source code, at the firmware level of a device, or be rooted in communication protocols. Backdoors can be exploited by malicious actors, increasing user vulnerability to cyberattacks. Detecting backdoors requires constant technological vigilance and rigorous system analysis.

Implications of New Cryptographic Technologies for Content Moderation

Innovation in cryptography is paving the way for new methods that allow effective content moderation while preserving end-to-end messaging encryption. Recent research is delving into advanced cryptographic technologies that empower platforms to detect and moderate problematic content without compromising communication privacy. These technologies, often rooted in artificial intelligence and natural language processing, have the capability to analyze metadata and behavior patterns to identify illicit content. For instance, the EU’s Digital Services Act (DSA) is aiming to make platform recommendation algorithms transparent and regulate online content moderation more effectively.

This could encompass systems that assess the context and frequency of messages to detect abuses without decrypting the content itself. Moreover, solutions like AI-based content moderation offer substantial advantages for managing online reputation, delivering faster and more consistent responses than manual moderation. These systems can be trained to recognize specific patterns of hate speech or terrorist content, enabling swift intervention while respecting user privacy. The integration of these innovations into messaging platforms could potentially resolve the dilemma between public safety and privacy protection. It provides authorities with the necessary tools to combat crime without infringing on individuals’ fundamental rights to communication privacy.

Potential Impact of This Technology on End-to-End Messaging Encryption of Messaging Services

Adopting these new cryptographic technologies represents a major advance in how we view online security and privacy. They offer considerable potential for improving content moderation while preserving end-to-end messaging encryption, ensuring a safer internet while protecting human rights in the digital age. These innovations could play a key role in implementing European regulations on end-to-end messaging encryption, balancing security needs with respect for privacy.

Messaging Services Affected by European Legislation

Among the popular messaging applications that use end-to-end messaging encryption available in Europe are:

  • Signal: A secure messaging application that uses end-to-end encryption. It ensures that only the sender and recipient can access message content, even when data is in transit on the network.
  • WhatsApp: Adopted end-to-end encryption in 2016. It ensures that messages are encrypted at the sender’s device and only decrypted at the recipient’s device.
  • Messenger: Meta (formerly Facebook) plans to generalize end-to-end encryption on Messenger by 2024.
  • Telegram: Uses end-to-end encryption for specific features, such as Secret Chats, ensuring message privacy between the sender and recipient.
  • iMessage: Apple’s messaging service uses end-to-end encryption for messages sent between Apple devices.
  • Viber: Another messaging app that uses end-to-end encryption to secure messages between users.
  • Threema: A secure messaging app that employs end-to-end encryption for all communications, providing high privacy standards.
  • Wire: Offers end-to-end encryption for messages, calls, and shared files, focusing on both personal and business communication.
  • Wickr: Provides end-to-end encryption for messaging and is known for its strong security features.
  • Dust: Emphasizes user privacy with end-to-end encryption and self-destructing messages.
  • ChatSecure: An open-source messaging app offering end-to-end encryption over XMPP with OTR encryption.
  • Element (formerly Riot): A secure messaging app built on the Matrix protocol, providing end-to-end encryption for all communications.
  • Keybase: Combines secure messaging with file sharing and team communication, all protected by end-to-end encryption.

Balancing Security and Privacy

The debate over end-to-end messaging encryption highlights the difficulty of finding a balance between security and privacy in the digital age. On the one hand, law enforcement agencies need effective tools to fight crime and terrorism. On the other hand, citizens have the fundamental right to privacy and the protection of their communications.

Alternatives to Weakened End-to-End Messaging Encryption?

It is crucial to explore alternatives that address law enforcement’s public safety concerns without compromising users’ privacy. Possible solutions include developing better digital investigation techniques, improving international cooperation between law enforcement agencies, and raising public awareness about online dangers.

Navigating Encryption: Security and Regulatory Impediments

Limitations and Challenges of Advanced Cryptographic Technologies

Hardware security modules (HSMs), such as PGP, actively enhance messaging and file encryption security. Similarly, Near Field Communication (NFC) hardware security modules, like DataShielder, significantly bolster protection. Yet, we must confront the significant limitations that regulations introduce; these aim to curtail the protection of both private and corporate data. By encrypting data before transmission, these solutions robustly defend against interception and unauthorized access, whether legal or otherwise. Additionally, this technology stands resilient to AI-driven content moderation filters. In particular, this pertains to messages and files that systems like DataShielder encrypt externally; subsequently, these services are employed for communication.

Ineffectiveness of AI-Based Moderation Filters

Content moderation systems relying on artificial intelligence face a major obstacle: they cannot decrypt and analyze content protected by advanced encryption methods. As a result, despite advances in AI and natural language processing, these filters become inoperative when confronted with messages or files encrypted via HSM PGP or NFC HSM.

Consequences for Security and Privacy

This limitation raises important questions about platforms’ ability to detect and prevent the spread of illicit content while respecting user privacy. It highlights the technical challenge of developing solutions that strike a balance between privacy protection and public safety requirements.

Towards a Balanced Solution

It is imperative to continue researching and developing new cryptographic technologies that enable effective moderation without compromising privacy. The goal is to find innovative methods that respect fundamental rights while providing authorities with the tools needed to fight criminal activities.

HSM PGP and NFC HSM: Alternatives to End-to-End Messaging Encryption

In addition to end-to-end encrypted messaging services, there are alternative solutions like Hardware Security Modules (HSM PGP) and Near Field Communication Hardware Security Modules (NFC HSM) that offer potentially higher levels of security. These devices are designed to protect cryptographic keys and perform sensitive cryptographic operations, ensuring data security throughout its lifecycle.

DataShielder NFC HSM and DataShielder HSM PGP are examples of products that use these technologies to encrypt communications and data anonymously. These tools allow encryption of not only messages but also all types of data, providing a versaced solution that uses Freemindtronic’s EviEngine technology to provide secure and flexible encryption, meeting the diverse needs of professionals and businesses. This solution is designed to operate without a server or database, enhancing security by keeping all data under the user’s control and reducing potential vulnerabilities.

Impact of HSM PGP and NFC HSM on End-to-End Messaging Encryption

HSM PGP and NFC HSM integration adds a vital layer to cybersecurity. They provide a robust solution for information security.

Specifically, DataShielder HSM PGP offers advanced protection. As the EU considers encryption regulation, DataShielder technologies emerge as key alternatives. They ensure confidentiality and security amidst digital complexity. These technologies advocate for encryption as a human rights safeguard. Simultaneously, they address national security issues.

Conclusion

The European legislator faces complexity in harmonizing regulation with Member States. They aim to finalize it by next year. Clearly, preserving end-to-end encryption requires exploring alternatives. This includes better cooperation between law enforcement and advanced investigative techniques.

HSM PGP and NFC HSM transform messaging into secure communication. They do so without servers or identification. Thus, they provide strong protection for organizational communication and data. These measures balance privacy needs with public safety requirements. They offer a comprehensive digital security approach in a complex environment.

Sources

The American Intelligence: How It Works

The American Intelligence How It Works : Section 702
Learn more about the American Intelligence written by Jacques Gascuel, inventor of sensitive data safety and security systems, for Freemindtronic. This article may be updated on this subject.

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The American Intelligence: How It Works, Its Limits and Consequences

The American intelligence is one of the most powerful and influential in the world. It has a vast network of agencies, resources, and allies that enable it to collect, analyze, and act on information of strategic interest. However, the American intelligence also faces challenges and criticisms, both internally and externally. In this article, we will explore how the American intelligence works, what are its limits, and what are the consequences of its actions for the global security and privacy.

How the American Intelligence Works

The American intelligence is composed of 18 agencies that form the Intelligence Community (IC). These agencies are divided into two categories: the civilian agencies, which are under the supervision of the Director of National Intelligence (DNI), and the military agencies, which are under the supervision of the Secretary of Defense.

The main civilian agencies are:

  • The Central Intelligence Agency (CIA), which is responsible for collecting, analyzing, and disseminating foreign intelligence, as well as conducting covert operations and paramilitary activities.
  • The National Security Agency (NSA), which is responsible for collecting, processing, and disseminating signals intelligence (SIGINT), as well as conducting cyber operations and protecting the US government’s communications and information systems.
  • The Federal Bureau of Investigation (FBI), which is responsible for collecting, analyzing, and disseminating domestic intelligence, as well as conducting counterintelligence, counterterrorism, and law enforcement activities.
  • The National Geospatial-Intelligence Agency (NGA), which is responsible for collecting, analyzing, and disseminating geospatial intelligence (GEOINT), which includes imagery, maps, and other geographic information.
  • The National Reconnaissance Office (NRO), which is responsible for designing, launching, and operating reconnaissance satellites and other space-based systems that provide intelligence to the IC and the Department of Defense (DoD).
  • The Office of the Director of National Intelligence (ODNI), which is responsible for overseeing, coordinating, and integrating the activities of the IC, as well as providing strategic guidance and support to the DNI.

The main military agencies are:

  • The Defense Intelligence Agency (DIA), which is responsible for providing military intelligence to the DoD and the IC, as well as conducting human intelligence (HUMINT), counterintelligence, and defense attaché activities.
  • The National Security Agency/Central Security Service (NSA/CSS), which is responsible for providing SIGINT and cyber support to the DoD and the IC, as well as conducting information assurance and cryptologic activities.
  • The National Geospatial-Intelligence Agency (NGA), which is responsible for providing GEOINT support to the DoD and the IC, as well as conducting geospatial analysis and mapping activities.
  • The National Reconnaissance Office (NRO), which is responsible for providing space-based intelligence support to the DoD and the IC, as well as conducting satellite reconnaissance and surveillance activities.
  • The Military Intelligence Corps (MI), which is responsible for providing tactical and operational intelligence to the Army and the joint force, as well as conducting HUMINT, SIGINT, GEOINT, and counterintelligence activities.
  • The Office of Naval Intelligence (ONI), which is responsible for providing maritime intelligence to the Navy and the joint force, as well as conducting HUMINT, SIGINT, GEOINT, and counterintelligence activities.
  • The Marine Corps Intelligence Activity (MCIA), which is responsible for providing intelligence to the Marine Corps and the joint force, as well as conducting HUMINT, SIGINT, GEOINT, and counterintelligence activities.
  • The Air Force Intelligence, Surveillance, and Reconnaissance Agency (AFISRA), which is responsible for providing intelligence to the Air Force and the joint force, as well as conducting HUMINT, SIGINT, GEOINT, and counterintelligence activities.

The American intelligence works by collecting information from various sources, such as human sources, signals, images, open sources, and others. It then analyzes this information to produce intelligence products, such as reports, assessments, briefings, and forecasts. These products are then disseminated to the relevant consumers, such as the President, the Congress, the military, the policy makers, and the allies. The American intelligence also acts on the information it collects, by conducting operations, such as covert actions, cyber attacks, drone strikes, and special operations.

The Limits of the American Intelligence

The American intelligence, despite its capabilities and resources, is not omnipotent or infallible. It faces several limits and challenges, such as:

  • Legal and ethical limits: The American intelligence is bound by the laws and regulations of the US and the international community, as well as by the values and principles of the American democracy. It must respect the rights and liberties of the American citizens and the foreign nationals, as well as the sovereignty and interests of the other countries. It must also abide by the oversight and accountability mechanisms of the executive, the legislative, and the judicial branches, as well as the public opinion and the media. The American intelligence must balance its need for secrecy and effectiveness with its duty for transparency and legitimacy.
  • Technical and operational limits: The American intelligence is limited by the availability and reliability of the information it collects, as well as by the accuracy and timeliness of the analysis it produces. It must deal with the challenges of information overload, data quality, data security, data privacy, and data sharing. It must also cope with the threats and risks of cyber attacks, counterintelligence, deception, and denial. The American intelligence must balance its need for innovation and adaptation with its need for standardization and coordination.
  • Strategic and political limits: The American intelligence is limited by the complexity and uncertainty of the global environment, as well as by the diversity and dynamism of the actors and issues it faces. It must deal with the challenges of globalization, multipolarity, regionalization, and fragmentation. It must also cope with the threats and opportunities of terrorism, proliferation, rogue states, failed states, and emerging powers. The American intelligence must balance its need for anticipation and prevention with its need for reaction and intervention.

The Consequences of the American Intelligence

The American intelligence has significant consequences for the global security and privacy, both positive and negative, such as:

  • Positive consequences: The American intelligence contributes to the protection and promotion of the national security and interests of the US and its allies, as well as to the maintenance and enhancement of the international peace and stability. It provides valuable information and insights to the decision makers and the operators, as well as to the public and the media. It also conducts effective operations and actions to deter, disrupt, or defeat the adversaries and the threats. The American intelligence plays a key role in the global intelligence cooperation and coordination, as well as in the global governance and leadership.
  • Negative consequences: The American intelligence also poses risks and challenges to the security and privacy of the US and its allies, as well as to the international order and norms. It may collect, analyze, or disseminate information that is inaccurate, incomplete, or biased, leading to errors, failures, or controversies. It may also conduct operations or actions that are illegal, unethical, or counterproductive, leading to violations, scandals, or backlashes. The American intelligence may face competition or conflict with the other intelligence services or actors, as well as with the other stakeholders or interests.

Section 702 of FISA: A Surveillance Without Control

  • On July 17, 2008, the US Congress passed section 702 of the FISA (Foreign Intelligence Surveillance Act), which authorizes the US intelligence agencies to collect the electronic communications of non-Americans located abroad, without a warrant from the FISA judge.
  • On January 19, 2018, the US Congress extended section 702 of FISA until December 31, 2023, without making any substantial changes.
  • On March 22, 2023, the US Congress extended section 702 of FISA again until April 19, 2024, without making any significant changes.
  • On December 16, 2023, the US Congress approved the National Defense Authorization Act (NDAA), which included a four-month extension of section 702 of FISA, avoiding its expiration at the end of the year.

The Violation of the Right to Privacy

  • On June 5, 2013, the whistleblower Edward Snowden revealed the existence of the PRISM program, which allowed the US intelligence agencies to access the data of the users of the main electronic service providers, such as Google, Facebook, Microsoft or Apple.
  • On October 6, 2015, the Court of Justice of the European Union (CJEU) invalidated the Safe Harbor, an agreement that allowed the transfer of personal data between the European Union and the United States, considering that it did not offer an adequate level of protection.
  • On July 16, 2020, the CJEU invalidated the Privacy Shield, the successor of the Safe Harbor, for the same reasons, considering that the risk of interference by the US intelligence services in the transferred data was incompatible with the respect of the fundamental rights of the persons concerned.
  • On July 31, 2023, the CJEU issued a ruling that confirmed the invalidity of the Privacy Shield and imposed strict conditions for the transfer of personal data to third countries, especially the United States, under the standard contractual clauses (SCCs) or the binding corporate rules (BCRs).

The Legal and Political Consequences

  • On October 24, 2013, the European Parliament adopted a resolution that condemned the massive surveillance activities of the US intelligence services and called for the suspension of the cooperation agreements on security and counter-terrorism.
  • On October 23, 2015, the European Parliament adopted another resolution that requested the creation of an independent international tribunal to examine the complaints of the European citizens regarding the surveillance of the US intelligence services.
  • On September 14, 2018, the European Parliament adopted a third resolution that called for the suspension of the Privacy Shield, due to the non-compliance of the commitments made by the United States on the protection of personal data.
  • On August 31, 2023, the European Parliament adopted a fourth resolution that asked the European Commission to propose a new legislation on the protection of personal data in the context of cross-border data flows, which would guarantee a level of protection equivalent to that of the general data protection regulation (GDPR).

Sources:

Congress passes temporary extension of FISA Section 702 surveillance program – Axios:

The Court of Justice invalidates Decision 2016/1250 on the adequacy of the protection provided by the EU-US Data Protection Shield:

FISA Section 702: What it is and why Congress is debating it – NBC News

New technologies and products that limit the possibilities of intelligence

Facing the capabilities of collection and analysis of the American intelligence, which threaten the privacy and sovereignty of individuals and countries, there are new technologies and products that allow to limit the possibilities of intelligence. These technologies and products use techniques of encryption, cryptography, blockchain or NFC to protect personal data and electronic communications. They offer an alternative to traditional solutions, which are often vulnerable to attacks or interceptions by the American intelligence. Among these technologies and products, we can mention:

  • EviCypher NFC HSM and EviCypher HSM OpenPGP, which are patented technologies in the United States in the field of cybersecurity developed by Freemindtronic SL Andorra, used in counter-espionage products such as DataShielder Defense. They allow to encrypt and decrypt data without contact, thanks to hardware security modules that use NFC technology. They offer compatibility with OpenPGP standards, operating without server, without database, with a very high level of flexibility from different removable, fixed and online and offline storage media including NFC HSM.
  • DataShielder DefenseDataShielder Defense, which is a counter-espionage product developed by Freemindtronic SL Andorra, which uses EviCore NFC HSM and EviCore HSM OpenPGP technologies to encrypt and decrypt all types of data and communication services. This product protects sovereign communications, by preventing the American intelligence from accessing personal, professional or state secrets. It also guarantees the sovereignty of users, by making their data anonymous and inviolable.
  • Signal, which is an instant messaging application that uses the Signal protocol, which is an end-to-end encryption protocol that ensures the confidentiality and integrity of messages. This application allows to communicate anonymously and securely, by avoiding the surveillance or censorship of the American intelligence.
  • Tor, which is a decentralized network that uses volunteer relays to route Internet traffic anonymously and encrypted. This network allows to browse the web without leaving traces, by hiding the IP address and location of users. It also allows to access hidden websites, which are not indexed by search engines.

These technologies and products represent examples of innovative solutions that limit the possibilities of the American intelligence and preserve the individual and collective sovereignty. They also illustrate the issues and challenges related to the use of digital technologies in the field of intelligence.

Conclusion

The American intelligence is a complex and dynamic phenomenon that has a significant impact on the world. It has many strengths and weaknesses, as well as many opportunities and threats. It has many achievements and failures, as well as many benefits and costs. It is a source of both security and insecurity, both privacy and surveillance. It is a subject of both admiration and criticism, both cooperation and confrontation. The American intelligence is a paradox that requires a careful and balanced approach.

Dual-Use Encryption Products: a regulated trade for security and human rights

Dual-Use encryption products a regulated trade for security and human rights by Freemindtronic-from Andorra
Dual-use encryption products by Jacques Gascuel: This article will be updated with any new information on the topic.

Dual-use encryption products: a challenge for security and human rights

Encryption is a technique that protects data and communications. Encryption products are dual-use goods, which can have civilian and military uses. The export of these products is controlled by the EU and the international community, to prevent their misuse or diversion. This article explains the EU regime for the export of dual-use encryption products, and how it has been updated.

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The international regulations on dual-use encryption products

The main international regulations that apply to dual-use encryption products are the Wassenaar Arrangement and the EU regime for the control of exports of dual-use goods.

The Wassenaar Arrangement

The Wassenaar Arrangement is a multilateral export control regime that aims to contribute to regional and international security and stability. It promotes transparency and responsibility in the transfers of conventional arms and dual-use goods and technologies. It was established in 1996 and currently has 42 participating states, including the United States, Canada, Japan, Australia, Russia, China and most of the EU member states.

The Wassenaar Arrangement maintains a list of dual-use goods and technologies that are subject to export control by the participating states. The list is divided into 10 categories, with subcategories and items. Category 5, part 2, covers information security, including encryption products. The list of encryption products includes, among others, the following items:

  • Cryptographic systems, equipment, components and software, using symmetric or asymmetric algorithms, with a key length exceeding 56 bits for symmetric algorithms or 512 bits for asymmetric algorithms, or specially designed for military or intelligence use.
  • Cryptanalytic systems, equipment, components and software, capable of recovering the plain text from the encrypted text, or of finding cryptographic keys or algorithms.
  • Cryptographic development systems, equipment, components and software, capable of generating, testing, modifying or evaluating cryptographic algorithms, keys or systems.
  • Non-cryptographic information security systems, equipment, components and software, using techniques such as steganography, watermarking, tamper resistance or authentication.
  • Technology for the development, production or use of the above items.

The participating states of the Wassenaar Arrangement are required to implement national export controls on the items listed in the arrangement, and to report annually their exports and denials of such items. However, the arrangement does not impose binding obligations on the participating states, and each state is free to decide whether to grant or refuse an export license, based on its own policies and national interests.

The EU regime for the control of exports of dual-use goods

The common legal framework of the EU for dual-use goods

The EU regime for the control of exports of dual-use goods is a common legal framework. It applies to all EU member states, and it has two main goals. First, it aims to ensure a consistent and effective implementation of the international obligations of export control. Second, it aims to protect the security and human rights of the EU and its partners. The regime is based on the Regulation (EU) 2021/821, which was adopted in May 2021 and entered into force in September 2021. This regulation replaces the previous Regulation (EC) No 428/2009.

The Regulation (EU) 2021/821: the principles and criteria of export control

The Regulation (EU) 2021/821 establishes a Union list of dual-use goods. These are goods that can have both civilian and military uses, such as software, equipment and technology. These goods are subject to an export authorization, which means that exporters need to obtain a permission from the competent authorities before exporting them. The Regulation also sets out a set of general principles and criteria for granting or refusing such authorization. The Union list of dual-use goods is based on the international export control regimes, including the Wassenaar Arrangement. It covers the same categories and items as the latter. However, the EU list also includes some additional items that are not covered by the international regimes. These are cyber-surveillance items that can be used for internal repression or human rights violations.

The Union list of dual-use goods: the categories and items subject to an export authorization

The Union list of dual-use goods consists of ten categories, which are:

  • Category 0: Nuclear materials, facilities and equipment
  • Category 1: Materials, chemicals, micro-organisms and toxins
  • Category 2: Materials processing
  • Category 3: Electronics
  • Category 4: Computers
  • Category 5: Telecommunications and information security
  • Category 6: Sensors and lasers
  • Category 7: Navigation and avionics
  • Category 8: Marine
  • Category 9: Aerospace and propulsion

Each category contains a number of items, which are identified by a code and a description. For example, the item 5A002 is “Information security systems, equipment and components”. The items are further divided into sub-items, which are identified by a letter and a number. For example, the sub-item 5A002.a.1 is “Cryptographic activation equipment or software designed or modified to activate cryptographic capability”.

The novelties of the Regulation (EU) 2021/821: the due diligence obligation, the catch-all clause, the human security approach and the transparency and information exchange mechanism

The Regulation (EU) 2021/821 also provides for different types of export authorizations. These are individual, global, general or ad hoc authorizations, depending on the nature, destination and end-use of the items. Moreover, the Regulation introduces some novelties, such as:

  • A due diligence obligation for exporters. This means that exporters have to verify the end-use and the end-user of the items, and to report any suspicious or irregular transaction.
  • A catch-all clause. This allows the competent authorities to impose an export authorization on items that are not listed, but that can be used for weapons of mass destruction, a military end-use, human rights violations or terrorism.
  • A human security approach. This requires the competent authorities to take into account the potential impact of the items on human rights, international humanitarian law, regional stability and sustainable development, especially for cyber-surveillance items.
  • A transparency and information exchange mechanism. This requires the competent authorities to share information on the authorizations, denials and consultations of export, and to publish annual reports on their export control activities.

The dual-use encryption products: sensitive goods for security and human rights

The dual-use encryption products are a specific type of dual-use goods that fall under the category 5 of the Union list. These are products that use cryptographic techniques to protect the confidentiality, integrity and authenticity of data and communications. These products can have both civilian and military uses, and they raise important issues for security and human rights.

The dual-use encryption products: a definition and examples

The dual-use encryption products are defined by the Regulation (EU) 2021/821 as “information security systems, equipment and components, and ‘software’ and ‘technology’ therefor, which use ‘cryptography’ or cryptanalytic functions”. The Regulation also provides a list of examples of such products, such as:

  • Cryptographic activation equipment or software
  • Cryptographic equipment for mobile cellular systems
  • Cryptographic equipment for radio communication systems
  • Cryptographic equipment for computer and network security
  • Cryptanalytic equipment and software
  • Quantum cryptography equipment and software

The dual-use encryption products: security issues

The dual-use encryption products can have a significant impact on the security of the EU and its partners. On the one hand, these products can enhance the security of the EU and its allies, by protecting their sensitive data and communications from unauthorized access, interception or manipulation. On the other hand, these products can also pose a threat to the security of the EU and its adversaries, by enabling the encryption of malicious or illegal activities, such as terrorism, espionage or cyberattacks. Therefore, the export of these products needs to be carefully controlled, to prevent their misuse or diversion to undesirable end-users or end-uses.

The dual-use encryption products: human rights issues

The dual-use encryption products can also have a significant impact on the human rights of the EU and its partners. On the one hand, these products can protect the human rights of the EU and its citizens, by safeguarding their privacy and freedom of expression on the internet. On the other hand, these products can also violate the human rights of the EU and its partners, by enabling the repression or surveillance of dissidents, activists or journalists by authoritarian regimes or non-state actors. Therefore, the export of these products needs to take into account the potential consequences of the items on human rights, international humanitarian law, regional stability and sustainable development, especially for cyber-surveillance items.

The modification of the Union list of dual-use goods by the Delegated Regulation (EU) 2022/1

The Union list of dual-use goods is not static, but dynamic. It is regularly updated to reflect the changes in the technological development and the international security environment. The latest update of the list was made by the Delegated Regulation (EU) 2022/1 of the Commission of 20 October 2021, which modifies the Regulation (EU) 2021/821.

The changes made by the international export control regimes in 2020 and 2021

The Delegated Regulation (EU) 2022/1 reflects the changes made by the international export control regimes in 2020 and 2021. These are the Wassenaar Arrangement, the Nuclear Suppliers Group, the Australia Group and the Missile Technology Control Regime. These regimes are voluntary and informal arrangements of states that coordinate their national export control policies on dual-use goods. The EU is a member of these regimes, and it aligns its Union list of dual-use goods with their lists of controlled items. The changes made by these regimes include the addition, deletion or modification of some items, as well as the clarification or simplification of some definitions or technical parameters.

The new items added to the Union list of dual-use goods: the quantum technologies, the drones and the facial recognition systems or biometric identification systems

The Delegated Regulation (EU) 2022/1 also adds some new items to the Union list of dual-use goods. These are items that are not covered by the international export control regimes, but that are considered to be sensitive for the security and human rights of the EU and its partners. These items include:

  • Certain types of software and technology for the development, production or use of quantum computers or quantum cryptography. These are devices or techniques that use the principles of quantum physics to perform computations or communications that are faster or more secure than conventional methods.
  • Certain types of equipment, software and technology for the development, production or use of unmanned aerial vehicles (UAVs) or drones. These are aircraft or systems that can fly without a human pilot on board, and that can be used for various purposes, such as surveillance, reconnaissance, delivery or attack.
  • Certain types of equipment, software and technology for the development, production or use of facial recognition systems or biometric identification systems. These are systems or techniques that can identify or verify the identity of a person based on their facial features or other biological characteristics, such as fingerprints, iris or voice.

The entry into force and application of the Delegated Regulation (EU) 2022/1

The Delegated Regulation (EU) 2022/1 entered into force on 7 January 2022. It applies to all exports of dual-use goods from the EU from that date. The exporters of dual-use goods need to be aware of the changes and updates to the Union list of dual-use goods, and to comply with the export control rules and procedures established by the Regulation (EU) 2021/821. The competent authorities of the member states need to implement and enforce the new Union list of dual-use goods, and to cooperate and coordinate with each other and with the Commission. The Commission needs to monitor and evaluate the impact and effectiveness of the new Union list of dual-use goods, and to report to the European Parliament and the Council.

The national regulations on dual-use encryption products

How some countries have their own rules on dual-use encryption products

The case of the United States

Some countries have their own national regulations on dual-use encryption products, which may differ or complement the existing regimes. For example, the United States has a complex and strict export control system, based on the Export Administration Regulations (EAR). The EAR classify encryption products under category 5, part 2, of the Commerce Control List (CCL). The EAR require an export license for most encryption products, except for some exceptions, such as mass market products, publicly available products, or products intended for certain countries or end-users. The EAR also require that exporters submit annual self-classification reports, semi-annual sales reports, and encryption review requests for certain products.

The case of Andorra

Andorra is a small country between France and Spain. It is not an EU member, but it has a customs union with it. However, this customs union does not cover all products. It only covers those belonging to chapters 25 to 97 of the Harmonized System (HS), which are mainly industrial products. Agricultural products and products belonging to chapters 1 to 24 of the HS are free of import duties in the EU. But they are subject to the most-favored-nation (MFN) treatment in Andorra.

Andorra has adopted the EU list of dual-use goods. It requires an export or transfer authorization for these goods, according to the Regulation (EU) 2021/821. This regulation came into force on 9 September 2021 and replaced the previous Regulation (EC) No 428/2009. Andorra has also adopted the necessary customs provisions for the proper functioning of the customs union with the EU. These provisions are based on the Community Customs Code and its implementing provisions, by the Decision No 1/2003 of the Customs Cooperation Committee.

Andorra applies the EU regulation, as it is part of the internal market. Moreover, Andorra has adopted the Delegated Regulation (EU) 2022/1 of the Commission of 20 October 2021, which modifies the EU list of dual-use goods. This modification reflects the changes made by the international export control regimes in 2020 and 2021. It also adds some new items, such as software and technologies for quantum computing, drones or facial recognition. The Delegated Regulation (EU) 2022/1 came into force on 7 January 2022, and applies to all exports of dual-use goods from the EU from that date.

Andorra entered the security and defense sector for the first time by participating in Eurosatory 2022. This is the international reference exhibition for land and airland defense and security. Andorra became the 96th country with a security and defense industry on its territory. Among the exhibitors, an Andorran company, Freemindtronic, specialized in counter-espionage solutions, presented innovative products. For example, DataShielder Defense NFC HSM, a device to protect sensitive data against physical and logical attacks. It uses technologies such as EviCypher NFC HSM and EviCore NFC HSM, contactless hardware security modules (NFC HSM). The president of Coges events, a subsidiary of GICAT, identified these products as dual-use and military products. They need an export or transfer authorization, according to the Regulation (EU) 2021/821. Freemindtronic also showed its other security solutions, such as EviKey NFC HSM, a secure USB key, a security token. These products were displayed in the Discover Village, a space for start-ups and SMEs innovations.

Switzerland

Switzerland is not an EU member, but it has a free trade agreement with it. Switzerland has adopted the Regulation (EU) 2021/821 by the Ordinance of 5 May 2021 on the control of dual-use goods. Switzerland applies the EU list of dual-use goods and requires an export or transfer authorization for these goods, according to the Regulation (EU) 2021/821. Switzerland has also adopted the Delegated Regulation (EU) 2022/1 of the Commission of 20 October 2021, which modifies the EU list of dual-use goods.

Turkey

Turkey is not an EU member, but it has a customs union with it. Turkey has adopted the Regulation (EU) 2021/821 by the Presidential Decree No 3990 of 9 September 2021 on the control of exports of dual-use goods. Turkey applies the EU list of dual-use goods and requires an export or transfer authorization for these goods, according to the Regulation (EU) 2021/821. Turkey has also adopted the Delegated Regulation (EU) 2022/1 of the Commission of 20 October 2021, which modifies the EU list of dual-use goods.

United Kingdom

The United Kingdom left the EU on 31 January 2020. It has adopted the Regulation (EU) 2021/821 by the Dual-Use Items (Export Control) Regulations 2021, which came into force on 9 September 2021. The United Kingdom applies the EU list of dual-use goods and requires an export or transfer authorization for these goods, according to the Regulation (EU) 2021/821. The United Kingdom has also adopted the Delegated Regulation (EU) 2022/1 of the Commission of 20 October 2021, which modifies the EU list of dual-use goods.

The challenges and opportunities for the exporters of dual-use encryption products

The exporters of dual-use encryption products face several challenges and opportunities in the current context of export control regulations. Among the challenges, we can mention:

  • The complexity and diversity of the regulations, which may vary depending on the countries, the products, the destinations and the end-uses, and which require a deep knowledge and a constant monitoring from the exporters.
  • The costs and delays related to the administrative procedures, which can be high and unpredictable, and which can affect the competitiveness and profitability of the exporters, especially for small and medium enterprises (SMEs).
  • The legal and reputational risks, which can result from an involuntary or intentional violation of the regulations, or from a misuse or diversion of the products by the end-users, and which can lead to sanctions, prosecutions or damages to the image of the exporters.

Among the opportunities, we can mention:

  • The growing demand and innovation for encryption products, which are increasingly used in many sectors and domains, such as finance, health, education, defense, security, human rights, etc.
  • The contribution to the security and human rights of the exporters, their customers and the general public, by enabling the protection of data, privacy, freedom of expression, access to information and democratic participation, thanks to encryption products.
  • The cooperation with the competent authorities, the civil society and the international community, to ensure the compliance and accountability of the exporters, and to support the development and implementation of effective and balanced encryption policies and regulations, that respect the security and human rights of all stakeholders.

Conclusion

Dual-use encryption products can have both civil and military uses. They are subject to export control regulations at different levels: international, regional and national. These regulations aim to prevent the risks that these products can pose for security and human rights. At the same time, they allow the development and trade of these products. Therefore, the exporters of dual-use encryption products must comply with the regulations that apply to their products. They must also assess the impact of their products on security and human rights. The exporters of dual-use encryption products can benefit from the demand and innovation for these products. These products are essential for the digital economy and society. They can also enhance the security and human rights of the exporters, their customers and the public.

Freemindtronic Andorra is a company that specializes in dual-use encryption products. It offers secure and innovative solutions for data, communication and transaction protection. Freemindtronic Andorra respects the export control regulations that apply to its products. It is also committed to promoting and supporting the responsible and lawful use of its products. It follows the principles of security and human rights. Freemindtronic Andorra cooperates with the authorities, the civil society and the international community. It ensures the transparency and accountability of its activities. It also participates in the development and implementation of effective and balanced encryption policies and regulations. It respects the interests and needs of all stakeholders.