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Not So Cryptic: The Law And Encryption

Attorneys Appearing in Court

There’s a lot of buzz in the news about encryption - President Trump and Attorney General William Barr demanding that Apple help them break encryption on iPhones associated with the recent shooting in Pensacola is an example. This isn’t the first time the President and his team have brought up encryption, and what many Americans might be unaware of is how these demands tie in with privacy laws and the serious consequences that opening backdoors could have for our digital security. Fewer still know about the recent changes to encryption laws in Australia.

Australian agencies with appropriate warrants can now delete, modify, and copy data on devices that are covered by the warrant. This has already undermined the safety and security of journalists in that country who were otherwise protected by other statutes. This is problematic for a number of reasons, the most obvious of which is the chilling effect this might have on journalism in the country. Investigators who are interested in reporting on abuses of power, for example, might worry that a warrant against them could result in their hard work being deleted. While this isn’t guaranteed, a chill on freedom of the press is rarely a good thing.

Even more concerning is that the legislation allows law enforcement agencies to demand access to end-to-end encrypted communications. This essentially gives law enforcement the right to demand backdoors into platforms like WhatsApp. There are a number of problems that stem from this legislation. The first is with the Five Eyes agreement, in which Canada, the U.K, Australia, New Zealand, and the United States have agreed to share intelligence information. This agreement has already been used in order to bypass domestic spying regulations, essentially allowing the parties to spy on each other’s citizens and then share the information with the country whose citizens had been spied on. In other words, Australia could (ostensibly) use these backdoors to spy on US citizens for the US government.

Yet the Five Eyes agreement isn’t even the biggest concern. Backdoors are bad; there are no safe backdoors. Hackers are constantly looking for unintentional backdoors so they can steal information to hold for ransom or to sell on the Dark Web. When intentional backdoors are created, they’re that much easier for hackers to find. What’s worse, these backdoors can’t be restricted to use by the Australian Government, which means it’s likely that they could be used for messages originating or destined to any country. In other words, while the backdoors are meant for Australia, they may be exploitable globally.

All this to say, the legal ramifications of any country instituting anti-encryption laws, let alone the United States, are broad, unpredictable, and potentially incredibly damaging. You can expect a lot of challenges to any legislation that might bring about changes to data privacy laws. Here at Attorneys on Demand, we try to be on the edge of technological change; that’s why we can help you find an appearance attorney with almost no notice. We’ll also keep you informed about important trends at the intersection of law and technology.