Backdoor encryption policies : a legal dilemma

Abstract

The ubiquitous use of technology has not only led us to impart communication and personal data online, but it has influenced our way of living. Encryption, a security measure taken to protect network communications, has found itself in the spotlight due to technological developments relating to the use of end-to-end encryption and national security threats. Such developments have led to a global discussion on the introduction of backdoors. The discussion emerging from law enforcement and intelligence agencies revolves around the concern that these agencies have in respect of their inability to access encrypted data online due to the use of encryption and which consequently prohibits them from exercising the powers given to them by law. Such a problem has been coined by the law enforcement community as the going dark concern. The discussion on encryption, which has been shifting in and out from the public sphere for years, was retriggered around the timeframe of the Snowden Revelations. However it was the San Bernardino attacks in California, U.S. and the short lived legal battle that ensued between the FBI and Apple Inc. that moved the discussion on encryption and more importantly backdoors into the public sphere. This thesis addresses whether governments should legislate in favour of law enforcement authorities and national security agencies having the authority to mandate backdoors from over-the-top (OTT) or tech companies in general and whether such laws already exist. This dilemma will be addressed both from the perspective of national security and law enforcement, and from a human rights perspective as well. The author will address the concerns that surround such a discussion while looking at judgments in respect of national security, human rights violations, legislation coming from different jurisdictions and general principles of law. The conclusion will see a short summary of the salient legal points and will address whether from the research carried out and the questions posed one can deduce that the current frameworks can provide strong safeguards which may allow one to answer the main question of this thesis in the affirmative, all the while maintaining the technical aspect in perspective.