San Diego Law Review

Library of Congress Authority File


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Technology drives our society, and we are data-dependent as a people. Though the legal system in the United States lacks neither basic protections nor methods to address data protection-related issues, this Article proposes an essential and more robust alternative.

This Article introduces the prevalence and reliance on data and stored information, noting the growing need for a better balance between enabling users’ ability to access encryption tools and the threats and concerns from a governmental perspective for malicious use of encryption tools for criminal and terror purposes.

The Article first recounts a brief history of encryption, focusing on its growing ubiquity. The Article addresses the conflict between U.S. governmental interests and attempts to quash data encryption by envisioning a digital key that circumvents encryption methods on the one hand, while on the other, the need to bolster data encryption in order to protect privacy rights under the Fourth and Fifth Amendments.

The Article discusses several alternative resolutions that better balance the conflicting interests related to data security issues and concludes by advocating for the Right to Data Encryption. It further discusses exceptions and potential rejection of this right and argues that its benefits far outweigh the negative implications and other potential proposals. Several legal theories support our suggested Right to Data Encryption and illustrate why this Right is an optimal solution.

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