Averting the Inherent Dangers of 'Going Dark': Why Congress Must Require a Locked Front Door to Encrypted Data

Abstract

"Going dark" refers to the current practice of embedding cell devices with encryption without manufacturers retaining the keys to provide "front door" access to data. The problems associated with "going dark" are real; encryption technologies are making it increasingly easy for individual users to prevent even lawful government access to potentially vital information related to crimes or other national security threats. This evolution of individual encryption capabilities represents a fundamental distortion of the balance between government surveillance authority and individual liberty central to the Fourth Amendment. Because reasonable searches are lawful, the ability to conduct them should not be blocked by commercial encryption designed to be impenetrable. Congress should therefore exercise its authority to ensure that such searches are possible. Only such legislatively mandated "front door" access will ensure that, "the right of the people to be secure in their persons, houses, papers, and effects" will be protected not only "against unreasonable searches and seizures," but also against attacks by criminals and terrorists.

Keywords: Encryption, Fourth Amendment, Surveillance, Going Dark, Search and Seizure

JEL Classification: K42, K14