Essentially, cryptography involves the conversion of information into unintelligible text for subsequent transmission past unintended third parties (“encryption”), with the intended recipient then converting the text back into intelligible form (“decryption”). For the purposes of this article, “data encryption” will be the term utilized to describe the entire process. In the online age, data encryption is favored as a means of transmitting confidential information across public spaces, whether literal or virtual, without a concomitant disclosure of the contents of the confidential information to unintended recipients. Unsurprisingly, a substantial transmission of encrypted data travels through virtual portals like the Internet. Though data encryption was once largely limited to the dissemination of military and government information, it is now employed for a myriad of reasons applicable to the average user, including for basic activities such as Web browsing and online transactions.
Data encryption has existed in various forms since the times of antiquity and yet the legal questions surrounding it remain largely unresolved, particularly in the United States. This lack of resolution is not for a paucity of recent attention to the practice. Stories have sprung up in the press detailing how data encryption is a critical component of the present government strategy on national security matters. Additionally, courts in various jurisdictions have decided questions of first impression involving the protection, if any, afforded to individuals who wish to avoid compelled disclosure of encrypted personal data. As a result, the debate surrounding data encryption has at present unprecedented salience and resonance. However, this debate is firmly ensconced in an uncertain legal framework, as the United States has yet to codify a statute that deals with the competing interests associated with data encryption.
