Encryption Policy and Its International Impacts: A Framework for Understanding Extraterritorial Ripple Effects

In the wake of the 2016 San Bernardino shooting, Apple and the US Federal Bureau of Investigation waged a public battle over the availability of essentially unbreakable encryption in consumer devices. 1 Ultimately the FBI was able to access the contents of the phone. 2 This forestalled proposed changes to US law and policy that would have effectively changed the level of encryption available in American consumer technologies. 3 Throughout this tense domestic debate—involving a US crime, US law enforcement, a US company, and US law—there was only a vague sense of what the broader international implications might be. 4 As the Trump administration considers reopening the debate over US encryption policies, and as many countries around the world consider and implement their own encryption policies, it is more important than ever to understand the ways in which seemingly domestic encryption policy decisions can reverberate around the globe. 5The recent scuffles over iPhone encryption are just one set of examples of the ways in which new consumer technologies with built-in encryption have created novel challenges for law enforcement agencies, national security agencies, and other policy-makers. In response to these technological challenges, policy-makers are increasingly considering policies with direct and indirect impacts on the effectiveness of encryption tools. While the domestic impacts of such policies are often intended and predictable, the international implications are often both unintentional and poorly understood. In an interconnected, highly networked world, it is no surprise that domestically focused policies can …