IN DEFENSE OF ENCRYPTION: THE CONFLICT BETWEEN LAW ENFORCEMENT AND THE FIRST AMENDMENT RIGHT TO SECURE COMMUNICATIONS

by Molly Ruiz^*

I. INTRODUCTION

Over the past two decades, the Internet has transformed from a novelty to a modern-world necessity, producing technological innovation to digitize almost every aspect of human life. As of 2015, nearly two-thirds of Americans owned smartphones,¹ utilizing a range of messaging services, from applications enabling quick connection with family and friends to platforms securing content with multiple layers of encryption. Unfortunately, while developers churn out new products as fast as they can be conceived, legislators and policymakers operate at a much slower pace.

Consequently, current statutes enacted more than ten years ago to regulate the privacy, use, and accessibility of digital communications cannot possibly address the realities of the modern technological landscape. This disparity between legislation and technology has received particular attention with respect to encryption. Following recent brutal acts of violence and terrorism, both in the United States and globally, law enforcement has investigated whether perpetrators used encryption to evade detection. The extent to which encryption should be regulated to facilitate law enforcement access to coded communications has been hotly contested, but the national discourse has largely focused on policy and legislation, with little attention to the role of the judicial system. This missing dimension—the constitutionality of regulating encryption—is examined in this paper.