individuals are to prevent the intelligence community from accessing
encrypted information, citizens take Fourth and Fifth Amendment privileges too
far despite how some legal scholars believe that invocations of constitutional
privileges are often vague.1
The unintended consequences of allowing American citizens to invoke Fourth and
Fifth Amendment privileges against legal forms of surveillance are that many
professionals organizations—e.g., financial institutions, hospitals, and
schools—lack incentives to preserve national insecurity interests.2 No
justifiable warrants or subpoenas would have the legal strength to force owners
of mobile and communications devices into temporary relinquishing
constitutional protections and preserving national security interests. As such,
the potential courses of action reflect how challenges to the current
encryption policy framework limit how law enforcement officers and federal
government agents protect citizens from real dangers.
POTENTIAL POLICY COURSES OF ACTION
As explained below,
the first potential policy course of action draws from recommendations of
allowing individuals to encrypt information stored in mobile and communications
devices but also permitting law enforcement officers and federal government
agents to preserve national security interests without encroaching upon Fourth
and Fifth Amendment protections.3
The second potential policy course of action refers to how the current
encryption policy framework requires a broadening of scope that aligns with
what privacy rights owners of mobile and communications devices require.4 The
third potential, and hereby recommended, policy course of action concerns how
big data challenges and opportunities directly represent a need to preserve
national security interests by permitting law enforcement officers and federal
government agents to prevent financial institutions, hospitals, and schools
from unintentionally harboring individuals likely to engage in criminal
activities by using heavily encrypted mobile and communications devices.5 Each
potential policy course of action implies that the intelligence community has a
significant amount of work to perform in striking a balance between privacy
interests and national security interests. Moreover, each potential course of
action also suggests that challenges to the current policy framework refer to
how Fourth and Fifth Amendment privileges require more rigorous definitions by
the Supreme Court.
Policy Option One
encryption of mobile and communications devices presents numerous dangers for
law enforcement officers and federal government agents concerning how corporate
entities in the information technology (IT) industry have leaders who
deliberately flout AECA and ITAR regulations to sustain a competitive
countries like the United Kingdom and France have more stringent regulations
that protect the privacy rights of citizens regarding encryption.7
Accordingly, the rights of individuals who own mobile and communications
devices to have information encrypted may prompt members of the legislative
branch in the United States federal government to propose bills requiring that
companies like Apple sacrifice a competitive advantage and make substantial
contributions towards maintaining national security interests. Since 2014, NSA
agents have expressed legitimate concerns about how newer models of the Apple
iPhone prevent law enforcement officer from performing thorough investigations
that occasionally involve the interception of verbal and text conversations.8 Recent
models of the iPhone also have features that encrypt e-mail messages, digital
photographs, and personal contexts based on applications of algorithms and
codes that specifically apply at the individual consumer level.9 As such,
encryption features included in recent models of the iPhone align with limited
restrictions on cryptography.10
1 Stay, supra note 1, at 596.
2 Sanjay Jain and Vaibhav Jain, Computer
Code Algorithms and Encryption Laws for Security, 6 J. COMP.
& MATH. SCI.
HOW THE CODE REBELS BEAT THE GOVERNMENT—SAVING PRIVACY
IN THE DIGITAL AGE (2001), at 213.
A. LEWIS, DENISE
E. ZHENG, AND
WILLIAM A. CARTER,
OF ENCRYPTION ON LAWFUL ACCESS TO
COMMUNICATIONS AND DATA (2017), at 2-3.
5 Gregor Pavlin, Thomas Quillinan, Franck
Mignet, Patrick de Oude, Exploiting Intelligence for National Security,
in STRATEGIC INTELLIGENCE
MANAGEMENT 181 (Babak Akhgar and Simeon Yates, eds., 2013), at 181-182.
6 McLaughlin, supra note 2, at 359.
7 Id at 376.
8 Sanger and Chen, supra note 10.
10 Nathan Saper, International Cryptography
Regulation, and the Global Information Economy, 11 NW. J. TECH. & INTELL.
PROP. 673 (2013), at 673-674.