The Road to Illegal Encryption
Paul Rosenzweig at Lawfare, in “What If Feinstein-Burr Passes?”, takes this argument down a parallel road with respect to this draft legislation that has been thoroughly criticized by the tech industry:
If we can’t realistically stop the importation of encryption products, the only plausible implementation step left as a counter-move is to prohibit the possession of the non-conforming product. This might be done civilly (in the same rough manner as we prohibit the possession of devices and items that violate intellectual property laws) or it could be done criminally (as we do with drugs). So it seems to me that if we are serious about Feinstein-Burr and want to counter the determined encryptor we are going to have to move to a system of software regulation and prohibition – the ban can’t work any other way.
If you think this is only about the San Bernardino shooter’s phone, or a particular device in the possession of the New York City Police Department, you may be missing where things are headed if this legislation passes or if pending court orders go the government’s way. The end game for the U.S. government is encryption becoming illegal.
Making encryption illegal will have far worse consequences than letting terrorists carry on with encrypted communications – which they will easily do regardless of these legislative and other government actions currently pending. Banning or weakening encryption will end up leaving all of our sensitive data unprotected.