Looking for Some Light Through the Lens of ‘Cryptowar’ History: Policy Options for Law Enforcement Authorities Against ‘Going Dark’

Koops, Bert-Jaap, and Eleni Kosta (2018), ‘Looking for some light through the lens of “cryptowar” history: Policy options for law enforcement authorities against “going dark”’, 34 Computer Law & Security Review, p. 890-900, doi: 10.1016/j.clsr.2018.06.003

Tilburg Law School Research Paper Forthcoming

18 Pages Posted: 8 Oct 2018

See all articles by Bert-Jaap Koops

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Eleni Kosta

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Tilburg Law School

Date Written: September 13, 2018

Abstract

As companies and end-users increasingly deploy end-to-end encryption, law enforcement and national security agencies claim they “go dark”, i.e. lose in practice the power to legally intercept and gain access to information and communications. This has revived a debate that seemed closed by the late 1990s, namely whether backdoors should be embedded in encryption systems. This paper provides a historical overview of the policy debates surrounding encryption, to identify the potential regulatory options for policy-makers, based on the lessons that can be learned from “cryptowar” history. We discuss the First Cryptowars (1990s, focusing on backdoor schemes), the Interbellum (featuring a rise in powers to order decryption), the Second Cryptowars (2010s, renewed backdoor discussions) and their aftermath: the newly emerging battlefield of legal hacking. The latter can be seen as a condition for the truce with which – for now – the Cryptowars seem to have ended. Cryptowar history teaches us that the two main policy options for decryption by government agencies – ensuring access to keys ex ante (backdoors) or ex post (decryption orders) – both suffer from fundamental flaws. Therefore, legal hacking powers – if human rights standards are sufficiently taken into account – could be the only realistic policy option to preserve some light in an era of dark communication channels.

Keywords: encryption, law enforcement access, cryptowars, crypto policy, backdoors, decryption orders, legal hacking

Suggested Citation

Koops, Bert-Jaap and Kosta, Eleni, Looking for Some Light Through the Lens of ‘Cryptowar’ History: Policy Options for Law Enforcement Authorities Against ‘Going Dark’ (September 13, 2018). Koops, Bert-Jaap, and Eleni Kosta (2018), ‘Looking for some light through the lens of “cryptowar” history: Policy options for law enforcement authorities against “going dark”’, 34 Computer Law & Security Review, p. 890-900, doi: 10.1016/j.clsr.2018.06.003 ; Tilburg Law School Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=3249238

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Eleni Kosta (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Tilburg Law School

Tilburg, 5000 LE
Netherlands

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