Download a pdf version of this article here. Almost twenty years ago, a hostile debate over whether government could regulate encryption—later named the Crypto Wars—seized the country. At the center of this debate stirred one simple question: is encryption protected speech? This issue touched all branches of government percolating from Congress, to the President, and eventually to the federal courts. In a waterfall of cases, several United States Court of Appeals appeared to reach a consensus that encryption was protected speech under the First Amendment, and with that the Crypto Wars appeared to be over, until now. Nearly twenty years later, the Crypto Wars have returned. Following recent mass shootings, law enforcement has once again questioned the legal protection for encryption and tried to implement “backdoor” techniques to access messages sent over encrypted channels. In the case, Apple v. FBI, the agency tried to compel Apple to grant access to the iPhone of a San Bernardino shooter. The case was never decided, but the legal arguments briefed before the court were essentially the same as they were two decades prior. Apple and amici supporting the company argued that encryption was protected speech. While these arguments remain convincing, circumstances have changed in ways that should be reflected in the legal doctrines that lawyers use. Unlike twenty years ago, today surveillance is ubiquitous, and the need for encryption is no longer felt by a seldom few. Encryption has become necessary for even the most basic exchange of information given that most Americans share “nearly every aspect of their lives—from the mundane to the intimate” over the Internet, as stated in a recent Supreme Court opinion.* Given these developments, lawyers might consider a new justification under the Press Clause. In addition to the many doctrinal concerns that exist with protection under the Speech Clause, the Press Clause is normatively and descriptively more accurate at protecting encryption as a tool for secure communication without fear of government surveillance. This Article outlines that framework by examining the historical and theoretical transformation of the Press Clause since its inception. ————————— * Riley v. California, 134 S. Ct. 2473, 2490 (2014).
Is Facebook Killing Privacy Softly? The Impact of Facebook’s Default Privacy Settings on Online Privacy
By Michael J. Kasdan* A pdf version of this article may be downloaded here. “IMPORTANT!! Tomorrow, Facebook will change its privacy settings to allow Mark Zuckerberg to come into your house while you sleep and eat your brains with a sharpened spoon. To stop this from happening go to Account > Home Invasion Settings > Cannibalism > Brains, and uncheck the “Tasty” box. Please copy and repost.” – Satirical Status Post from Friend’s Facebook Status on February 15, 2011. Introduction Since launching its now ubiquitous social networking website out of the Harvard dorm room of Mark Zuckerberg in early 2004, Facebook has rapidly become one of the most dominant websites on the planet. And “rapid” doesn’t quite do it justice. It has been estimated that over 40% of the U.S. population has a Facebook account.[FN1] Facebook now boasts over 600 million active user accounts [FN2] and was recently estimated to be adding user accounts at the unbelievable clip of well over half a million new users per day.[FN3] More →
By Darren A. Heitner* A pdf version of this article may be downloaded here. On its own Fan Page, Facebook describes itself as a service that gives “people the power to share and make the world more open and connected.”[FN1] People over the age of twelve, but not too old to understand how to use a computer keyboard, are able to sign up for a Facebook account and immediately share content and information with the world. Facebook users may upload photos and videos, update their statuses, share links, create events and groups, make comments, write notes, write messages on their own or others’ “Walls,” and send private messages to other users (all of which will hereinafter be referred to as “Published Facebook Content”). Facebook delivers on its promise to permit sharing in an online environment where people can easily get caught up on their friends’ actions and activities. The openness is what makes Facebook extremely desirable; it also makes the platform a potential legal nightmare for those who do not understand how its content may be used as evidence in a lawsuit. More →