Professor Myriam Gilles' article The Day Doctrine Died: Private Arbitration and the Rule of Law is the sole article awarded High Distinction by the Pound Civil Justice Institute's 2019 Civil Justice
Why government and tech can't agree about encryption
By BREE FOWLER and TAMI ABDOLLAH
Nov. 24, 2015
Associated Press NEW YORK — Your phone is getting better and better at protecting your privacy. But Uncle Sam isn't totally comfortable with that, because it's also complicating the work of tracking criminals and potential national-security threats.
For decades, tech companies have steadily expanded the use of encryption — a data-scrambling technology that shields information from prying eyes, whether it's sent over the Internet or stored on phones and computers. For almost as long, police and intelligence agencies have sought to poke holes in the security technology, which can thwart investigators even when they have a legal warrant for, say, possibly incriminating text messages stored on a phone.
The authorities haven't fared well; strong encryption now keeps strangers out of everything from your iMessages to app data stored on the latest Android phones. But in the wake of the Paris attacks, U.S. officials are again pushing for limits on encryption, even though there's still no evidence the extremists used it to safeguard their communications.
While various experts are exploring ways of resolving the impasse, none are making much headway. For now, the status quo favors civil libertarians and the tech industry, although that could change quickly — for instance, should another attack lead to mass U.S. casualties. Such a scenario could stampede Congress into passing hasty and potentially counterproductive restrictions on encryption.
"There are completely reasonable concerns on both sides," said Yeshiva University law professor Deborah Pearlstein. The aftermath of an attack, however, "is the least practical time to have a rational discussion about these issues."