Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance

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 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 automatically treating all electronic communications from U.S. citizens that are hidden or obscured through encryption — for whatever reason — as suspicious, a direct descendant of the “nothing-to-hide” family of privacy minimization arguments. The ubiquity of electronic communication in the United States 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 individuals of their electronic communications is not alone a basis for individualized suspicion. Moreover, this Article asserts that the NSA’s 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 that is necessary for a healthy democracy.