Encryption Congress Mod (Apple + CALEA)

70 Pages Posted: 21 Aug 2016 Last revised: 21 Jul 2019

See all articles by Justin (Gus) Hurwitz

Justin (Gus) Hurwitz

International Center for Law & Economics (ICLE); University of Pennsylvania Law School

Date Written: August 19, 2016


We are in the midst of the latest iteration of the “crypto wars.” These conflicts, nominally waged between proponents of strong encryption technologies on the one hand and law enforcement and national security interests on the other, are the natural result of increased availability and use of strong encryption throughout the communications ecosystem. Strong encryption makes it difficult, in some cases effectively impossible, for the government to obtain information from individuals – even in cases where it has lawful basis for demanding and legitimate need to obtain access to that information. The availability of a technology that effectively moots the government’s ability to compel the disclosure of information shifts the balance of power between individuals and the government. The task of rebalancing these powers ultimately falls to the political process, and, in specific, to Congress. This article uses CALEA, a law adopted in 1994 during the previous iteration of the crypto wars, as a lens to understand how Congress can, and is likely to, respond to this changing balance of power.

Suggested Citation

Hurwitz, Justin (Gus), Encryption Congress Mod (Apple + CALEA) (August 19, 2016). 30 Harvard Journal of Law and Technology 355 (2017), Available at SSRN: https://ssrn.com/abstract=2826869 or http://dx.doi.org/10.2139/ssrn.2826869

Justin (Gus) Hurwitz (Contact Author)

International Center for Law & Economics (ICLE) ( email )

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Lake Oswego, OR 97035
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University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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