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Going Over the Top

April 9, 2019, Global Data Review

Trisha Anderson spoke with the Global Data Review about the U.S.’s encryption law and its role electronic communication. According to Ms. Anderson, authorities in the U.S. have only general legal tools to seek access to encrypted data. Some traditional U.S. investigative tools, issued through courts and codified in law enforcement procedures, contain general requirements for private parties to provide "technical assistance” to the government, she says. Those obligations require companies to help authorities facilitate access to data.

 

Additionally, the government has previously relied on common law writs to seek the assistance of private parties in accessing data. In the absence of specific decryption requirements in U.S. law, it’s likely that these are the “legal footholds” that the U.S. government would rely on if it were to try to force a company to decrypt customer data. In the absence of legislation, the only way for the government to seek decryption would be through litigation. “There is a question about whether there will be specific encryption legislation in the US,” Ms. Anderson says. “But I think most people see that as unlikely anytime soon and that we won’t see anything like the Australian bill,” a controversial bill that would allow government data interception.

 

She adds, “Litigation as a general matter is not the ideal place for the resolution of a nuanced policy debate. The courts are not the kinds of arbiters well-suited to making that kind of national policy, but it’s such a difficult issue that it’s hard to be optimistic about this being solved by legislation any time soon.”

 

The UK’s Investigatory Powers Act has also looked for ways to view these digital conversations. The proposal would be carried out under the terms of the UK’s Investigatory Powers Act—the same law that is widely seen as the main barrier to the UK achieving an adequacy decision from the EU after Brexit, says Ms. Anderson.

 

Authorities are likely to see that differently, she says. The government would argue that content is king, she says. “It can tell you where and when a terrorist is going to commit an attack, for instance. Metadata can be very revealing, but the government would say that there simply is no substitute for content.”

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