Dancing in the Dark: How End-to-End Encryption Has Allowed Social Media Platforms to Sidestep the Law

The widespread use of encrypted messaging by social media platforms is a sourceof contentious public debate. Governments and law enforcement agencies arguefor the need to review electronic messages to investigate and prosecute seriouscriminal offenses. Privacy and civil rights advocates—and the social mediaplatforms themselves—counter that enabling greater law enforcement access willalso make it easier for criminal actors to access and manipulate the privateinformation of these platforms’ users. The strongest and fastest-growing kind ofencryption is called end-to-end encryption. Only the sender and intendedrecipient of an end-to-end encrypted message can read its contents. That is whythe effect of this kind of encryption is often called “going dark”; if deleted, themessage’s contents are rendered completely inaccessible to any third parties. Thisincludes the provider of the communication service, and law enforcementagencies. This Article approaches the legal issues surrounding end-to-endencryption in a different way. It will not wade into the normative, oft-discussedprivacy debate. Rather, it will seek to positively explain how end-to-endencryption, as currently practiced, is not in compliance with service providers’federal statutory obligations to disclose information to law enforcement.