Policy essay: “Encryption Substitutes,” by Andrew Keane Woods:
In this short essay, I make a few simple assumptions that bear mentioning at the outset. First, I assume that governments have good and legitimate reasons for getting access to personal data. These include things like controlling crime, fighting terrorism, and regulating territorial borders. Second, I assume that people have a right to expect privacy in their personal data. Therefore, policymakers should seek to satisfy both law enforcement and privacy concerns without unduly burdening one or the other. Of course, much of the debate over government access to data is about how to respect both of these assumptions. Different actors will make different trade-offs. My aim in this short essay is merely to show that regardless of where one draws this line—whether one is more concerned with ensuring privacy of personal information or ensuring that the government has access to crucial evidence—it would be shortsighted and counterproductive to draw that line with regard to one particular privacy technique and without regard to possible substitutes. The first part of the paper briefly characterizes the encryption debate two ways: first, as it is typically discussed, in stark, uncompromising terms; and second, as a subset of a broader problem. The second part summarizes several avenues available to law enforcement and intelligence agencies seeking access to data. The third part outlines the alternative avenues available to privacy-seekers. The availability of substitutes is relevant to the regulators but also to the regulated. If the encryption debate is one tool in a game of cat and mouse, the cat has other tools at his disposal to catch the mouse—and the mouse has other tools to evade the cat. The fourth part offers some initial thoughts on implications for the privacy debate.