Backdoors to Encryption: Analysing an Intermediary’s Duty to Provide “Technical Assistance”

Abstract

This paper examines recent proposals in India that seek to place obligations on
intermediaries to provide “technical assistance” to LEAs, by either creating backdoors
or weakening standards of encryption. While LEAs have genuine concerns arising
from the use of certain types of encryption, implementing a general mandate for
“technical assistance” can have significant effects on privacy of individuals and
network security. Such a mandate may not pass a cost-benefit analysis, and more
importantly may be against constitutional norms, being disproportionate. Rather than
limiting the use of certain technologies or implementing significant changes in
platform and network architecture, the Indian government should focus on
implementing detailed, rights-respecting procedures for data access, developing
hacking capabilities with sufficient oversight, encouraging research and
development, and improving coordination with industry and academia.

Keywords: encryption, India, intermediary liability, intermediaries, privacy, technical assistance, technology, security, cyber security

JEL Classification: K1, K10, K41, Z18,