Encryption Congress Mod (Apple + CALEA)

Abstract

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.