The International Legal Dynamics of Encryption

Abstract

“To date, there has been little coordinated action internationally to address encryption, though interest is growing. If international discussions occur, what will they look like, in what forums might they take place, and on what aspects of encryption will they focus? This paper looks at encryption through five different international lenses: human rights, law enforcement, intelligence, economics, and export controls. It evaluates the current views of U.S. and foreign actors in each framework, describes international discussions (if any) that have transpired, and identifies factors that may drive outcomes.

The paper concludes that procedurally the United States has several opportunities to shape international discussions about encryption. Substantively, the current U.S. intelligence advantage in obtaining access to encrypted information and the significant value to the United States of end-to-end encryption in the economic and rights frameworks mean the United States should be content to either affirmatively advance or passively allow end-to-end encryption as the preferred posture in the international arena.”

Keywords: encryption, human rights, law enforcement, intelligence, export control, freedom of expression, treaty, National Security Agency