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Sparkling Lights in the Going Dark:

Legal Safeguards for Law Enforcement’s Encryption Circumvention Measures

Thiago Moraes


Keywords: encryption, right to privacy, surveillance, going dark

This article discusses legal safeguards that could be in place in the European jurisdictions when law enforcement authorities conducting investigations of criminal offenses implement circumvention measures to bypass encryption technologies designed to protect the right to privacy of users of electronic communication services and equipment. The analysis is structured in three parts: first, two encryption technologies used by communication applications and devices are explained: end-to-end encryption and full disk encryption. Second, two encryption circumvention measures are discussed: government hacking and unlock orders. This study discusses their effectiveness against those encryption techniques, as well as their degree of invasiveness and potential harm to individuals’ rights to privacy and concludes with a list of possible legal safeguards that could be considered when implementing them. These safeguards are defined and discussed, based on European case law and national legislations analysis.
Keywords: encryption; right to privacy; surveillance; going dark

Thiago Moraes, Master of Law and Technology from Tilburg University (Netherlands), a Master of Information Science and a Bachelor of Law and Network Engineering from the University of Brasilia (UnB); formely Blue Book Trainee at the European Data Protection Supervisor; co-founder of the Brazilian think tank Laboratory of Public Policy and Internet. For correspondence: <>.


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