More than thirty years ago, historian of technology Melvin Kranzberg put forward his famous “First Law”: “Technology is neither good nor bad; nor is it neutral.” By this he meant to combat technological determinism, by which a particular technology has a “good” or “bad” essence that dictated its adoption by and effect on society. But Kranzberg’s law also cautioned against technological utopianism, the illusion that society can maintain full instrumental control of technology.
A stark illustration of Kranzberg’s first law is modern information and communications technology. The Internet and its ecosystem of connected devices have profoundly altered individual and social life, including those aspects that are the topic of this symposium: the intersection of gender, law, and technology. Technology has enabled new forms of gender- and sexual-based crime and has frequently made it harder to prosecute those who commit sexual assault.
Yet in many cases technology has also served as a shield for victims, getting them help and protecting their privacy. These effects, both negative and positive, have been of the unintended variety, as society grapples to adapt to technological change it does not fully understand. The Internet and its outgrowths have been neither good nor bad; but neither have they been neutral.
Of particular importance has been ubiquitous strong encryption, one of the core technologies underpinning digital life. Since its adoption by business and the public in the late 1980s and early 1990s, the issue of law-enforcement access to encrypted data has been hotly debated in the legal, policy, and technology communities. After a decade and a half of relative peace, the “crypto wars” have started up again. The issue has seen a revival in legal scholarship, and it is also salient in the policy arena, prompting high-profile reports from law-enforcement organizations, information security researchers, policy analysts, and multiple branches of government, including proposed legislation on all sides of the issue, at both the federal and state levels.
This Article seeks to advance the debate around government access to encrypted data. Part I explains how encryption secures communications and data; how it helps protect victims of crime; and how it impedes law enforcement, particularly at the state and local levels.
Part II, the analytical core of the Article, introduces the public-policy literature on “wicked problems” to explain why the encryption issue is such a difficult one.
Part III suggests some changes to policy and institutional design. This Article aims at several audiences. The first is those-whether in the legal academy, government, industry, civil society, or the information-security community-who are working on the issue of law-enforcement access to encrypted data. We are in a critical period for this issue: public opinion is split on whether companies should design their systems to permit law-enforcement access; technology companies can no longer assume a hands-off, deregulatory environment; and the looming specter of foreign regulation from liberal and autocratic regimes alike gives the government and Silicon Valley an incentive to resolve the encryption issue one way or the other, thereby setting a global precedent.’
My hope is that this article will nudge the discussion away from oppositional, all-or-nothing analyses of short-term proposals and toward a higherlevel, longer-term approach that can find common ground among the various sides. Another audience this Article addresses is scholars who study the intersection of gender, equality, and technology. For these scholars, I hope my account will usefully inform them of an important technological dimension to how the internet and other communications and computing technology can both undergird and undermine attempts to end gender and sexual crime. Finally, this Article speaks to scholars of administrative law and regulatory theory. In particular, I hope my discussion of wicked problems provides a novel and useful lens through which administrative-law scholars think about how to grapple with today’s biggest regulatory challenges.’