A Mystery Wrapped in an Encryption: Surveillance and Privacy in the Encrypted Era

Gross, Shannon | May 2, 2017

At the moment, there is a debate between law enforcement and the technology industry, on behalf of their users, about the whether technology companies should provide backdoors or assistance when users encrypt their communications. Despite the needs of law enforcement, backdoors or other unlocking measures can severely intrude into consumer privacy interests. At the risk of losing evidence, privacy should be the dominant concern, which has been supported by the Supreme Court noting that “privacy comes at a cost”.1 Stephanie Pell and others have discussed the problems with current statutes for privacy interests, but the discussions surrounding encryption technology are a new issue that has not been closely covered by legal scholarship. This note uses a privacy rights analysis to support technology companies’ arguments for noncompliance with law enforcement requests to de-encrypt encrypted communications. As the debate continues ahead, this note may provide support for consumer privacy against law enforcement intrusion. 1 Riley,