The critical role of technical and social principles and values in encryption regulation
I presented a paper on “The critical role of technical and social principles and values in encryption regulation” at the New Zealand Symposium on Law and Technology: Education, Practice and Policy 2021 held on 1 July 2021 in Auckland. The following is the abstract:
Encryption is a complex and enigmatic technology that poses significant challenges to regulators. While encryption is crucial to preserving the security and privacy of information and communications, it can also be used for illegal purposes and means and impede criminal investigations. Governments around the world have been proposing various ways to regulate this technology since the widespread presence and use of computers and the internet in the 1990s. Legislators have unsurprisingly taken a very law-centred approach to regulating encryption. They assume that the enactment of laws can definitively solve the problems brought about by new or disruptive technologies such as encryption. This regulatory mindset is encapsulated in a statement made by former Austrian Prime Minister Turnbull about how law trumps the underlying mathematics of encryption. He said, “The laws of Australia prevail in Australia, I can assure you of that. The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia”. The issue with this exceedingly narrow and one-sided view of the relationship between law and technology is that it neglects to take into account important non-legal factors and considerations that are necessary in order to properly deal with encryption or any technology for that matter. Focusing solely on the laws and legal aspects of encryption without sufficient recognition of its technical and social contexts and conditions can result in the adoption of laws that are either ineffectual or unacceptable to the relevant stakeholders or society as a whole. This presentation will discuss the attendant technical and social principles and values of encryption that must be considered when seeking to develop appropriate laws and policies. Through the examination of the often overlooked technical and social dimensions of encryption, this presentation can provide key insights into how to better regulate encryption and technology more generally.
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