Law enforcement’s dilemma: fighting 21st century encrypted communications with 20th century legislation
Owen, Robyn J.
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This thesis explores the issue law enforcement has been confronting since the Edward Snowden leaks prompted technology companies to design their communication devices with enhanced encryption. As a result of these modifications, many investigations have been stymied because providers claim that they can no longer furnish law enforcement with device and communication content, even when so ordered by the court. Device designers and communication providers claim that enhanced encryption is intended to protect individual privacy and corporate intellectual property. However, these changes have resulted in providing criminals and terrorists alike with avenues to communicate anonymously and out of law enforcement’s reach. A significant issue is that legislation has not kept pace with emerging communication platforms. The Policy Analysis method was employed to explore potential solutions to this issue, culminating with the conclusion that the problem requires a two-pronged approach to address both data in motion, and data at rest. Data in motion refers to communications in real time, and it should be addressed by installing spyware to capture the content. Data at rest refers to stored content, and it should be addressed by the use of split-key encryption. Both methods would require amending current statutes or drafting entirely new legislation to cover existing and future communication platforms.
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