Advances in technology in the past decade have blurred the line between individuals’ privacy rights and the government’s ability to access information. How should this issue be handled in a manner that balances the privacy rights of individuals and the government’s access to information in the interest of national security?
This Note proposes a bright-line rule that would continue to allow the government to obtain specific information from a data service provider without forcing the company to circumvent its own security features. Under this rule, a company shall relinquish specific information in its control or possession only by court order and only when necessary to aid the government in the interest of national security. Such information would not include security software, but instead only account information, which the company can readily access. Further, no court shall order a data service provider to create or modify programming that would bypass security features as a means to access protected information. Such programming would provide hackers and governmental entities with a backdoor into other similar devices. Indeed, once created and surrendered, this programming is at risk of being hacked or used by the government in other circumstances. The suggested legislation would not bar a technology company from voluntarily assisting the government or law enforcement in gaining access to encrypted data by creating or modifying programming. If a company chooses to do so, the company could assist and would receive reasonable compensation for the costs incurred.
The legal battles between Apple and the FBI demonstrate that without a brightline rule, the government will continue to attempt to gain access to as much information as it can through legislation such as the All Writs Act. Further, forcing a technology company to create or modify programming violates constitutional rights. The costs associated with creating a backdoor far exceed the benefits. Therefore, until Congress speaks to this issue, the legal battle will continue, as the line between privacy rights and the government’s access to information remains blurred.
The Fight Over Encryption: Reasons Why Congress Must Block the Government from Compelling Technology Companies to Create Backdoors into Their Devices,
66 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol66/iss2/9