Cracks in the Armor: Legal Approaches to Encryption

Abstract

Encryption protects digital information from unauthorized access by making it illegible to anyone without an encryption key. While this ensures the security of digital communications, it also prevents the government from accessing evidence it needs for national security investigations. This creates an apparent conflict between the private sector’s desire for strong encryption and the government’s interest in “back door” access, thus raising the normative question of whether governments should be able to legally require companies to maintain “back doors” to encrypted information. In view of the significant impact of this debate on economic, privacy, security, and diplomatic interests of states around the world, this paper explores two lines of inquiry: First, what legal frameworks should courts and legislators use to approach encryption? Second, which framework produces the best policy outcomes—in particular, which stakeholders are benefitted or harmed under each approach? To answer these questions, this paper examines legal approaches to encryption in the US and UK, countries with contrasting policies on the subject. It evaluates the pros and cons of each approach, situating encryption within existing legal frameworks. This includes the First Amendment argument of “code as free speech,” government investigatory powers under the Fourth Amendment, and the UK’s Investigatory Powers Act permitting government-mandated back doors. This is the first paper clarifying, surveying, and comparing the legal approaches to encryption in the US and UK. Such a comparative analysis explaining the consequences of each legal approach could help countries choose the most effective approach to encryption. By applying existing laws to the novel problems posed by encryption, this paper generates new evidence against the implementation of encryption back doors.