Shedding Light on the “Going Dark” Problem and the Encryption Debate

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. In response, the government has resorted to obtaining court orders to compel private companies to assist it in bypassing encrypted devices, in some cases demanding that companies create entirely new software to accomplish this task. This raises a plethora of political, economic, and legal questions. This Note argues that given the weighty interests on all sides of the debate and the widespread effects that these cases will have, the encryption issue should be decided by the legislative branch instead of the courts. Because of the complexity of these issues and the lack of current legislation, the courts are being forced to stretch the law in ways that will likely lead to inconsistent and undesirable rulings. This Note advocates that the best method for Congress to solve this problem is to create an administrative body with rule-making, investigative, and adjudicative powers to address these situations on a case-by-case basis and to advise Congress on future legislation regarding encryption and digital security in general.