Lawful Surveillance Protocols, Crypto Wars, and the Limitations of Privacy as Security

Abstract

This article revisits the “crypto wars” and the recurrent debates over exceptional access to encrypted data. From the Clipper Chip to Apple’s San Bernardino confrontation and beyond, policymakers and technologists traditionally framed encryption as a clash between privacy and security. Recent scholarship, however, reframes the conflict as one of security vs. security, emphasizing that undermining encryption weakens the very systems on which state and individual safety depend. Building on this reframing, the article surveys and critically evaluates proposals for “lawful surveillance protocols,” which attempt to reconcile privacy and law enforcement needs through cryptographic design. It argues that the prevailing conception of privacy as security, while strategically powerful, is incomplete. The article shows that a purely security-centered account fails to capture what is at stake in encryption regulation. It concludes that a fuller articulation of the right to privacy is needed to guide future debates and technical research.