Demanding Weaker Encryption To Help Law Enforcement Makes Us All Less Safe

Jim Harper

Technology,

Should the government require tech companies to redesign their systems so that government agents can access encrypted communications and data?

This week, the Senate Judiciary Committee will hold a hearing examining a Groundhog Day issue in internet policy: Should the government require tech companies to redesign their systems so that government agents can access encrypted communications and data? Little about the hearing is available at this writing, but its title is “Encryption and Lawful Access: Evaluating Benefits and Risks to Public Safety and Privacy.” That is an invitation to balanced analysis, which can be enlightened by consideration of benefits and costs, as well as other concepts in risk management.

The model in the US for mandating that a communications product be designed conveniently for law enforcement is CALEA, the Communications Assistance to Law Enforcement Act. That law, passed in 1994, requires centralized telecommunications carriers and manufacturers to make their services and equipment amenable to wiretapping.

CALEA reflects the technology of the times. In the 1990s, there were a small number of channels over which wrongdoers could communicate long-distance. Having access to the nation’s communications bottlenecks could provide genuine and lasting law enforcement benefits.

But communications technology has changed, and criminals are not static actors. Communications travel across the wide-open internet now, on varied and variable routes, and in a variety of formats, including bespoke options. Internet service providers and backbone providers do not stand in the same all-seeing position that phone companies stand to the content crossing their systems.