During the negotiations on the drafting of the [International Covenant on Civil and Political Rights], "the freedom to form an opinion and to develop this by way of reasoning was held to be absolute and, in contrast to freedom of expression, not allowed to be restricted by law or other power". The ability to hold an opinion freely was seen to be a fundamental element of human dignity and democratic self-governance, a guarantee so critical that the Covenant would allow no interference, limitation or restriction.

Individuals regularly hold opinions digitally, saving their views and their search and browse histories, for instance, on hard drives, in the cloud, and in e-mail archives, which private and public authorities often retain for lengthy if not indefinite periods. Civil society organizations likewise prepare and store digitally memoranda, papers and publications, all of which involve the creation and holding of opinions. In other words, holding opinions in the digital age is not an abstract concept limited to what may be in one's mind. And yet, today, holding opinions in digital space is under attack.

The right to hold opinions without interference also includes the right to form opinions. Surveillance systems, both targeted and mass, may undermine the right to form an opinion, as the fear of unwilling disclosure of online activity, such as search and browsing, likely deters individuals from accessing information, particularly where such surveillance leads to repressive outcomes. For all these reasons, restrictions on encryption and anonymity must be assessed to determine whether they would amount to an impermissible interference with the right to hold opinions.

Restrictions on encryption and anonymity, as enablers of the right to freedom of expression, must meet the well-known three-part test: any limitation on expression must be provided for by law; may only be imposed for legitimate grounds (as set out in article 19 (3) of the Covenant); and must conform to the strict tests of necessity and proportionality.

A high risk of damage to a critical, legitimate State interest may justify limited intrusions on the freedom of expression. Conversely, where a restriction has a broad impact on individuals who pose no threat to a legitimate government interest, the State's burden to justify the restriction will be very high.

States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows. In addition, States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms). Court-ordered decryption, subject to domestic and international law, may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals (i.e., not to a mass of people) and subject to judicial warrant and the protection of due process rights of individuals.

Governments have at their disposal a broad set of alternative tools, such as wiretapping, geo-location and tracking, data-mining, traditional physical surveillance and many others, which strengthen contemporary law enforcement and counter-terrorism.