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Unpublished Paper
Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance
ExpressO (2014)
  • Jeffrey L Vagle

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under Section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications—including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic communications is alone enough to give the NSA the right to store that data until it is able to decrypt or decode it.

Through this provision, the NSA is effectively adopting the position that all electronic communications from U.S. citizens which are hidden or obscured through encryption—for whatever reason—are automatically treated as suspicious, a direct descendant of the “nothing to hide” family of privacy minimization arguments. The ubiquity of electronic communication in the U.S. and elsewhere has led to the widespread use of encryption, the vast majority of it for innocuous purposes. This article argues that the mere encryption by an individual of their electronic communication is not alone a basis for individualized suspicion, and asserts that this policy amounts to a suspicionless search and seizure. This program is therefore in direct conflict with the fundamental principles underlying the Fourth Amendment, specifically the protection of individuals from unwarranted government power, and the establishment of the reciprocal trust between citizen and government necessary for a healthy democracy.

  • encryption,
  • surveillance,
  • FISA
Publication Date
February 21, 2014
Citation Information
Jeffrey L Vagle. "Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance" ExpressO (2014)
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