Law Enforcement Access to Encrypted Data: Legislative Responses and the Charter

45 Pages Posted: 25 Feb 2019 Last revised: 4 Apr 2019

See all articles by Steven Penney

Steven Penney

University of Alberta - Faculty of Law

Dylan Gibbs

affiliation not provided to SSRN

Date Written: 2017

Abstract

In our digital age, encryption represents both a tremendous social benefit and a significant threat to public safety. While it provides the confidence and trust essential for digital communications and transactions, wrongdoers can also use it to shield incriminating evidence from law enforcement, potentially in perpetuity. There are two main legal reforms that have been proposed to address this conundrum: requiring encryption providers to give police “exceptional access” to decrypted data, and empowering police to compel individuals decrypt their own data. This article evaluates each of these alternatives in the context of policy and constitutional law. We conclude that exceptional access, though very likely constitutional, creates too great a risk of data insecurity to justify its benefits to law enforcement and public safety. Compelled decryption, in contrast, would provide at least a partial solution without unduly compromising data security. And while it would inevitably attract constitutional scrutiny, it could be readily designed to comply with the Charter. By requiring warrants to compel users to decrypt and giving evidentiary immunity to the act of decryption, our proposal would prevent inquisitorial fishing expeditions yet allow the decrypted information itself to be used for investigative and prosecutorial purposes.

Suggested Citation

Penney, Steven and Gibbs, Dylan, Law Enforcement Access to Encrypted Data: Legislative Responses and the Charter (2017). McGill Law Journal, Vol. 63, No. 2, 2017. Available at SSRN: https://ssrn.com/abstract=3331348

Steven Penney (Contact Author)

University of Alberta - Faculty of Law ( email )

Law Centre
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

HOME PAGE: http://www.ualberta.ca/law/about/contact/profiles/steven-penney

Dylan Gibbs

affiliation not provided to SSRN

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