By David C. Gray

Abstract
In 2013, reports based on documents leaked by former National Security Agency contractor Edward Snowden revealed committed efforts by federal agencies to develop and deploy data surveillance technologies. These revelations documented the ability of government agencies to monitor internet usage, read the contents of communications, and access data stored in the cloud and on personal devices. These revelations marked a turning point in the public conversation as consumers became aware of the extent to which national security and law enforcement agencies can monitor a wide range of activities in physical and virtual spaces.

The market responded. Technology companies began to tout their commitments to privacy. Some waged quixotic battles to resist government requests for user information. Others deployed and promoted privacy-protective technologies. Google began encrypting data flows between their servers. Encrypted email and messaging services entered the mainstream. Hardware companies made encryption a standard feature on computers and mobile devices. As this new movement to “go dark” took hold, government officials, including then-Director of the Federal Bureau of Investigation (FBI) James Comey, went on the attack, arguing that encryption would hamstring law enforcement and threaten national security.

These issues came to a head in 2016 when the FBI sought access to an Apple iPhone recovered from the perpetrators of a December 2015 terrorist attack in San Bernardino, California. The FBI had a warrant to search the phone but could not serve that warrant because the phone was encrypted, and the sole possessor of the password was dead. The FBI sought the assistance of Apple to circumnavigate the phone’s encryption. Apple refused and later contested a court order compelling the company to decrypt the phone. In addition to its own rights, Apple and its amici suggested that forcing a technology company to compromise encryption would threaten the rights of customers. The FBI eventually dropped the suit, but debates about a right to “go dark” persist, stoked by continuing complaints by government agencies and legislative proposals to limit the availability of robust encryption.

Debates about privacy and technology tend toward grand abstractions. This article takes a different tack by focusing on three potential doctrinal grounds for such a right: the Fourth Amendment, which governs searches and seizures; the Fifth Amendment, which bars compelled testimonial incrimination; and evidentiary rules on privilege, which sometimes protect information sharing between some parties. It concludes that shifts in the law and the new ways we interact with technologies point to an emergent right to go dark.


Recommended Citation
David C. Gray, A Right to Go Dark (?), 72 SMU L. Rev. 621 (2019).