Article

Dancing in the Dark: How End-to-End Encryption Has Allowed Social Media Platforms to Sidestep the Law

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Abstract

The widespread use of encrypted messaging by social media platforms is a source
of contentious public debate. Governments and law enforcement agencies argue
for the need to review electronic messages to investigate and prosecute serious
criminal offenses. Privacy and civil rights advocates—and the social media
platforms themselves—counter that enabling greater law enforcement access will
also make it easier for criminal actors to access and manipulate the private
information of these platforms’ users. The strongest and fastest-growing kind of
encryption is called end-to-end encryption. Only the sender and intended
recipient of an end-to-end encrypted message can read its contents. That is why
the effect of this kind of encryption is often called “going dark”; if deleted, the
message’s contents are rendered completely inaccessible to any third parties. This
includes the provider of the communication service, and law enforcement
agencies. This Article approaches the legal issues surrounding end-to-end
encryption in a different way. It will not wade into the normative, oft-discussed
privacy debate. Rather, it will seek to positively explain how end-to-end
encryption, as currently practiced, is not in compliance with service providers’
federal statutory obligations to disclose information to law enforcement.

Keywords: Social Media, Civil Rights, Privacy