EUROPEAN UNION THE COUNCIL
Brussels, 14 May 1998
NOTE " I/A"
from: K.4 Committee
No. prev. docs.: 7622/98 ENFOPOL 52, 8116/98 ENFOPOL 69
Subject: Draft Council conclusions on encryption and law enforcement
The K.4 Committee, at its meeting on 27 and 28 April 1998, decided to suggest to COREPER/Council to approve the conclusions on encryption and law enforcement as set out in the annex to the present note.
Council conclusions on
Encryption and Law Enforcement
The Telecommunications Council on 1 December 1997 welcomed the Commission Communication entitled "Security and Trust in Electronic Communication - towards a European framework for digital signatures and encryption". In acknowledging that the use of encrypted communications may diminish the capacity of Member States to fight crime and to maintain their national security, the Telecommunications Council noted the need to discuss relevant aspects of the Communication with the Justice and Home Affairs Council to ensure a co-ordinated approach. It also drew attention to the need to distinguish between authentication and integrity products and services on the one hand, and confidentiality products and services on the other.
2. There was an informal discussion of law enforcement issues associated with the Communication at a meeting of Justice and Home Affairs Ministers in Birmingham on 29/30 January 1998. Further consideration has now been given to law enforcement interests where cryptographic products and services are used for confidentiality purposes.
3. The Council acknowledges that the use of cryptographic services to ensure the integrity and confidentiality of digital communications not only has substantial benefits for electronic commerce and the privacy of individuals, but is also important for the prevention of crimes such as fraud. However, the Council is also aware that law enforcement agencies are concerned that the widespread availability of cryptographic services for confidentiality purposes may have a serious impact on the fight against serious crime and terrorism if, where necessary and appropriate, it is not possible to get lawful access to encryption keys on a case by case basis. The Council has therefore agreed to monitor closely the extent to which encryption is exploited by serious criminals and terrorists.
4. The Council Resolution of 17 January 1995 recognised that lawfully authorised interception of communications is an important tool for the investigation of serious crime. The Council notes that law enforcement agencies may require lawful access to encryption keys, without the knowledge of the user of the cryptographic service, in order to maintain this capability. To this end, the Council recognises that one possible approach amongst others, which might meet law enforcement interests, might be the promotion of confidentiality services which involve the depositing of an encryption key or other information with a third party. Such services are often known as key escrow or key recovery' services. Law enforcement agencies may also require lawful access to encryption keys where it is necessary to decrypt material which has been seized as part of a criminal investigation.
5. The Council recognises that a range of measures, including legislation, may be necessary in order to protect citizens against serious crime and terrorism. However, any such measures must be proportionate and balanced against other important interests. In particular, they must take full account of any associated disadvantages and of the need to protect civil liberties and the importance of safeguarding the functioning of the Internal Market in order to ensure the successful development of electronic commerce. Any measures to provide lawful access to encryption keys will also need to include strong safeguards.
6. The Council believes it is important to establish a common understanding of the needs of law enforcement agencies where cryptographic services are used for confidentiality purposes. It has therefore agreed to prepare a Resolution on Encryption and Law Enforcement to complement the work underway in other fore of the Council. The Resolution will invite Member States to take account of law enforcement needs in developing their national policies.
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