Why Courts May Be Where the Future of Encryption Is Decided

We are approaching a sea change when it comes to how personal data is created, stored and repurposed. Recent cases between state, local, and federal governments and companies like Apple and Facebook are breaking new ground in the battle between legitimate law enforcement surveillance and user privacy.

While the FBI and other law enforcement agencies can seek court orders compelling companies to comply with wiretap orders, at least two issues make it harder for government agencies to get the data they’re seeking in cases that are likely to arise:

  1. Rapidly changing technology. Law enforcement officials say they have been left behind by rapid changes in communications technology. To intercept the content of communications being sent in real time, investigators use laws that limit their reach, such as the 1994 Communications Assistance for Law Enforcement Act.
  2. Increasingly sophisticated encryption. Encrypted devices, such as iPhones, scramble data using a code that can only be opened with a special “key.” Often, the hardware itself serves as a unique key. This means that without a specific iPhone, companies may not be able to provide law enforcement with the data sent on their networks, and phone companies may not be able to provide that data to law enforcement without having possession of the specific iPhone with the hardwired key.

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