A cross-agency group will examine the relative risks and benefits of end-to-end encryption and advise ministers on whether to regulate the technology

Experts are cautiously backing a new government initiative to investigate the degree to which law enforcement is hampered by encrypted online communications.

The work programme is detailed in documents released to Newsroom under the Official Information Act. It will involve a cross-agency working group which will weigh up the benefits of encryption – for cyber security, economic competition, privacy and defending human rights in repressive states – against the challenges it poses to law enforcement agencies.

Tony Lynch, the official in charge of the National Security Group in the Department of the Prime Minister and Cabinet, told Newsroom the working group has held two meetings so far and will meet again in December. It consists of representatives from police, intelligence agencies, the Department of Internal Affairs, Customs, the Ministry of Business, Innovation and Employment and the Ministry of Justice.

“The working group is aiming to develop a final report by mid-2023. Following this, an update and recommendations will be provided to ministers for their consideration,” he said.

The purpose of the programme is detailed in a May briefing dispatched to seven ministers affected by the issue. It will seek to collect data on the impact of end-to-end encryption on law enforcement activity as well as on the benefits of the technology.

End-to-end encryption excludes third parties from accessing communications, including the provider of the platform. Encrypted messaging apps like Signal have become increasingly popular as the pandemic has moved more and more business online. Now, even major tech companies like Meta (formerly Facebook) are planning to encrypt messages via their platforms.

In a July briefing to Police Minister Chris Hipkins, police officials raised Meta’s move as being particularly concerning.

“Presently, Police can access the content of communications on Facebook Messenger through legal processes, but this may not be the case in the future,” they wrote.

“Meta removes approximately 8 million instances of Child Sexual Abuse Material (CSAM) content from its servers every three months and accounts for a significant proportion of the 6,602 referrals for CSAM content sent to New Zealand law enforcement in 2020. When Meta implements [end-to-end encryption] by default, as planned, it will severely confine its ability to detect CSAM images on its platforms.”

Police said they thought the work programme would “identify the public safety risks posed by [end-to-end encrypted] communications and provide options for possible mitigation, as well as suggest further opportunities for reform, noting the legitimate private sector benefits”.

Experts were broadly supportive of the proposal to produce a report on encryption rooted in evidence rather than anecdote. They expected it would find the benefits outweigh the risks.

Michael Dizon is the author of a 2019 Law Foundation report on regulating encryption and a senior lecturer in IT law at the University of Waikato.

“I like it because they’re going to actually go out and ask the different agencies about their actual experience of whether they are being blocked in their investigations. They could have just easily gone, ‘let’s find one anecdote’, right? And then ‘let’s run with it’,” he said.

“It’s nice that they’re actually trying to get data to make recommendations, rather than one bad case. In law, they say bad cases make bad law.”

Tom Barraclough, co-director of the Brainbox Institute research centre, told Newsroom he was also encouraged to see the emphasis on protecting privacy and freedom of expression.

“The decision to take a coordinated approach that builds on work done internationally is wise. Despite that, I have two observations,” he said.

“It will be critical for government agencies to seek out civil society perspectives on this work, especially from groups that have historically been subject to unjustified increased surveillance. While looking to overseas examples as a guide, New Zealand also cannot compromise its own values. We will be looking to ensure the values embedded in the Christchurch Call and human rights instruments are front-of-mind for government agencies.”

Marc Daalder is a senior political reporter based in Wellington who covers climate change, health, energy and violent extremism. Twitter/Bluesky: @marcdaalder

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