End-to-End Encryption and “Going Dark”
New paper: “Encryption and Globalization 15 Years Later: End-to-End Encryption and the Third Round of the ‘Going Dark’ Debate“:
Abstract: This Article updates and expands on 2012 research on encryption and globalization, analyzing what the authors call “Round 3” of the Going Dark Debate: the current controversies over end-to-end encryption (E2EE). Governments around the world have proposed, and in some cases enacted, laws limiting E2EE for law enforcement and national security purposes.
This Article explains the underlying technologies and market developments for a law and policy audience to assess those proposals critically. The Article proceeds in three parts tracking three rounds of the Going Dark Debate. Round 1 covers the Crypto Wars of the 1990s, when U.S. export controls on strong encryption ultimately fell in 1999. Round 2 covers the period roughly 2010 to 2015, when encryption-in-transit became widespread but lawful access remained available through cloud providers, giving rise to what the authors called a “golden age of surveillance” rather than a period of going dark. Round 3 addresses the current debate over E2EE, where no entity between sender and recipient can read the plaintext.
The Article’s first major contribution is identifying five technically distinct scenarios for how E2EE operates in practice, each with different implications for lawful access. These scenarios reveal a substantial gap between the assumption that E2EE categorically blocks lawful access and the reality of how communications are sent and received. Second, the Article shows that E2EE is not limited to messaging; instead, it is embedded throughout the modern technology stack, including in Transport Layer Security, Secure Shell, Virtual Private Networks, and Zero Trust Architecture, the last of which is now legally required under U.S. and EU law. Any law broadly limiting E2EE would thus have severe serious consequences for cybersecurity, commerce, and government operations. The Article concludes that the two key lessons from Round 2—the least trusted country problem and the golden age of surveillance—remain true in Round 3, and that new government claims for restricting effective encryption deserve great skepticism.
About Author
