Introduction

Encryption protects cybersecurity, safeguards vulnerable groups like journalists and victims of domestic violence, and allows people to communicate securely with family, colleagues, and sensitive third-parties. However, encryption is often seen as a safeguard that is only relevant to people with specific privacy concerns, and that people who have “nothing to hide” don’t need or benefit from strong encryption. This could not be further from the truth. Encryption is crucial to the way that everyone interacts with technology and lives their lives online.

Law enforcement has continually claimed that encryption hampers investigations and protects criminal actors, referring to the spread of encryption as “going dark.” They have pushed for the implementation of mechanisms, commonly described as “backdoors,” that would guarantee them access to encrypted data. Technologists, academics, members of civil society, and allies within government have continually explained that strong encryption is crucial to privacy, security, free expression, and economic growth. Discussing the importance of encryption as a matter of consumer privacy for all people is an important component of the conversation regarding next steps for regulators, Congress, and companies.

Encryption has been under attack many times before, but in the past year we have seen new and serious threats to the ability of companies to provide strong encryption to consumers, and for everyone to have access to the security they need for their communications and stored data. Various U.S. government officials have pushed companies to weaken the encrypted technology they provide to users, or to not implement crucial security updates including the implementation of universal end-to-end encrypted messaging. These dangerous and misguided proposals are not based on a factual understanding of encryption.¹ Additionally, discussing encryption as an issue of “security vs. privacy” fundamentally misrepresents the way encryption protects everyone. Two of the most recent proposals to undermine encryption, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act and the Lawful Access to Encrypted Data Act, both introduced in Congress in 2020, will be discussed later in this paper.

This report builds on an event held by New America’s Open Technology Institute on February 4, 2020 that examined the role of encryption in protecting consumer privacy. The panel began with a fireside chat with Federal Trade Commissioner Rohit Chopra and Alexandra S. Levine, reporter and host of Morning Tech at Politico. Levine moderated the following panel discussion, which included Asad Ramzanali, legislative director for Rep. Anna G. Eshoo (D-Calif.); Katie McInnis, then-policy counsel at Consumer Reports; Keun Kim, senior managing counsel, Digital Payments & Labs, Products and Innovation, at Mastercard; and Hannah Quay-de la Vallee, senior technologist at the Center for Democracy & Technology. The discussion covered the history of encryption’s role in the privacy debate, an analysis of its role in consumer protection, and background on how policies surrounding encryption are playing out in both the government and private sector.

This event was designed to move debates about encryption away from hot-button issues, which often distract from discussions about the ways encryption protects everyone and is already embedded in the technologies we use every day. The paper likewise does not focus on those issues, and instead seeks to center the debate around the fundamental issue of consumer privacy. Participants in the “Privacy’s Best Friend” panel helped set the stage for discussions about next steps for policy regarding encryption and consumer privacy, and identified some of the recurring themes in our decades-long debates about whether to regulate encryption.

Editorial disclosure: This report discusses policies by Apple, Facebook, and Google, all of which are funders of work at New America but did not contribute funds directly to the research or writing of this report. New America is guided by the principles of full transparency, independence, and accessibility in all its activities and partnerships. New America does not engage in research or educational activities directed or influenced in any way by financial supporters. View our full list of donors at www.newamerica.org/our-funding.