As the 21st century approaches, encryption is presenting a national security dilemma in the US. While the use of strong encryption for computerized data is essential in protecting our nation, widespread, unregulated encryption poses serious problems on two levels: encryption could inhibit the government's ability to enforce the law as well as gather foreign intelligence. As a result, the government has established export controls on encryption products and proposed a 'key recovery' system designed to enable law enforcement officers to access encrypted data in the course of lawful investigations. The export controls have been ineffective and counterproductive policy and are arguably unconstitutional under the First Amendment. However, export controls are the only viable solution to the intelligence gathering problem and will need to survive these political and legal attacks or our national security could be jeopardized. Key recovery will be difficult and costly to implement and has come under attack by civ...

Encryption: A 21st Century National Security Dilemma

Publisher Summary This chapter discusses the changing interface between privacy and encryption policy in the information society. The development of national policies on the distribution, and the use of cryptographic techniques and efforts by various groups within society to use encryption to protect individual and group secrets in communications have existed for centuries. As strong encryption technologies began to come widely into the public sphere, governmental legislative and policy responses began to shift from barring disclosure and research to barring their export to other countries and restricting their legal use by the public. The encryption systems of varying strengths that are increasingly embedded in consumer software—such as web browsers—and commercial software—such as website payment systems—are not just present because the security of commercial transactions is mandated by law. They are there because browser developers and website owners perceive a need to inculcate a high level of trust in potential users to persuade them to move from off-line to on-line commercial activity.

Munitions, wiretaps and MP3s: The changing interface between privacy and encryption policy in the information society

Abstract Over the past decade, the Five Eyes Intelligence community has argued cryptosystems with end-to-end encryption (E2EE) are disrupting the acquisition and analysis of digital evidence. They have labelled this phenomenon the ‘problem of going dark’. Consequently, several jurisdictions have passed ‘responsible encryption’ laws that limit access to E2EE. Based upon a rhetorical analysis (Cunningham in Understanding rhetoric: a guide to critical reading and argumentation, BrownWalker Press, Boca Raton, 2018) of official statements about ‘going dark’, it is argued there is a need for a domain-specific principle of cryptographic justice to reorient the debate away from competing technocratic claims about the necessity, proportionality, and accountability of digital surveillance programs. This article therefore specifies a principle of cryptographic justice by adapting more general norms of information justice to decision-making about encryption law and policy. The resulting principle is that encryption laws and policies should be designed to empower the comparatively powerless to protect themselves from domination (i.e., morally arbitrary forms of surveillance). It is argued this principle can reorient decision-making about encryption law and policy towards consideration of how cryptography impacts systems-level power dynamics within information societies. 

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Specifying a principle of cryptographic justice as a response to the problem of going dark

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Jill M. Ryan

Papers

Freedom to Speak Unintelligibly: The First Amendment Implications of Government-Controlled Encryption