In an increasingly digital world, the ability to secure communications through encryption has become a cornerstone of both personal and corporate privacy.

Encryption technology, which scrambles data so that only authorized parties can read it, is fundamental to safeguarding sensitive information—from financial transactions to personal correspondence. However, in the ongoing battle against terrorism, cybercrime, and organized criminal activities, some governments argue that access to encrypted communications is essential for national security.

In Australia, the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, commonly known as the “Encryption Law”, has sparked a heated debate about the legal and ethical implications of forcing tech companies to decrypt private communications. The law, which compels companies like Google, Facebook, and Amazon to assist in decrypting communications of suspected criminals and terrorists, has been strongly opposed by digital giants, who argue that it poses significant risks to privacy, cybersecurity, and freedom of speech.

This article explores the legal, ethical, and economic considerations of breaking encryption for the sake of national security, analyzing both the potential benefits and the harms associated with this approach.

The Benefits of Breaking Encryption for National Security

1. Preventing Terrorism and Criminal Activity

One of the primary arguments in favor of breaking encryption is its potential to protect innocent lives by allowing law enforcement and intelligence agencies to intercept communications related to terrorist plots, organized crime, and other high-risk activities. Criminals often use encrypted messaging platforms (e.g., WhatsApp, Telegram) to evade detection, making it difficult for authorities to gather critical intelligence.

By compelling companies to grant access to encrypted communications, law enforcement agencies can potentially intercept terrorist planning, drug trafficking networks, or human trafficking operations before they escalate. This could lead to the prevention of major attacks, the dismantling of criminal organizations, and the saving of countless lives.

2. Enhancing Public Safety

In addition to combating terrorism, breaking encryption can help in cases involving missing persons, kidnapping, or threats to public safety. By having the legal authority to break encryption, security services could potentially locate individuals in danger or intercept criminal conspiracies before they come to fruition. This could be particularly crucial in situations where time is of the essence, such as a terrorist attack or mass violence.

3. International Cooperation and Intelligence Sharing

Encryption laws can also help bolster international cooperation between governments and intelligence agencies. In an era where cybercrime is increasingly cross-border, the ability to access encrypted communications could help countries share critical intelligence, track global networks of criminal activity, and close the loopholes exploited by organized crime. This international cooperation is essential for tackling global threats like cyberattacks, terrorism, and trafficking.

The Harms of Breaking Encryption: Privacy, Security, and Fundamental Rights

1. Infringement on Privacy

Encryption has become one of the most powerful tools to protect individual privacy in the digital age. Laws that allow government agencies to break encryption would fundamentally undermine the privacy rights of individuals, potentially enabling the unwarranted surveillance of ordinary citizens. For example, end-to-end encryption (the type commonly used in encrypted messaging apps like Signal and WhatsApp) ensures that only the sender and receiver can read the contents of a message, making it impossible for third parties—be it hackers, corporations, or governments—to eavesdrop.

Allowing government entities access to encrypted communications without a proper judicial oversight mechanism could lead to the abuse of power and unlawful surveillance. It may also set a dangerous precedent where privacy rights are eroded in the name of national security, undermining citizens’ trust in digital platforms and online communications.

2. Cybersecurity Risks and Data Vulnerabilities

Another major concern is that breaking encryption could expose sensitive information to hackers and other malicious actors. Encrypted communications serve as a line of defense against cyberattacks. If tech companies are forced to create “backdoors” or weaken encryption systems in order to comply with government requests, these vulnerabilities could be exploited by cybercriminals, foreign governments, or terrorist groups. The resulting security breaches could jeopardize not only individuals’ personal data but also critical infrastructure and national security assets.

Tech giants like Google and Facebook have warned that weakening encryption to facilitate government surveillance could inadvertently compromise the security of millions of users worldwide. Hackers could exploit backdoors to gain unauthorized access to sensitive data, potentially leading to large-scale data breaches and identity theft. Moreover, many cybersecurity experts argue that once an encryption system is weakened, it could be impossible to repair, rendering entire systems vulnerable to attacks indefinitely.

3. Chilling Effect on Free Speech and Political Dissent

Breaking encryption also raises serious concerns regarding freedom of expression and political dissent. If encryption is compromised, individuals may be less likely to speak freely or organize politically, fearing that their communications may be intercepted or monitored by government agencies. This is particularly concerning in authoritarian regimes where the freedom of speech is already heavily restricted.

For activists, journalists, and opposition groups, encryption provides a layer of protection against governmental repression. The weakening of encryption could discourage the free flow of information, stifle whistleblowing, and ultimately undermine democratic principles. In regions where dissent is met with repression, encryption plays a vital role in ensuring that individuals can express their views without fear of retaliation.

4. Legal Precedents and Overreach

A global legal framework governing the breaking of encryption may not be consistent across jurisdictions, leading to potential conflicts between national laws and international human rights standards. Countries with weaker rule-of-law systems may exploit encryption laws to carry out political surveillance or target specific minority groups. The legal overreach in some jurisdictions could result in the criminalization of activities that should be protected under international law, such as freedom of assembly and privacy rights.

Global Legal Frameworks: Finding a Balance Between Security and Privacy

To address the risks posed by breaking encryption, global legal frameworks must be developed to regulate when and how encryption can be legally broken. Some key areas to consider:

1. Judicial Oversight: Governments must ensure that any surveillance measures related to encryption are subject to independent judicial oversight, ensuring that they are both proportionate and necessary to meet national security objectives. There must be clear guidelines about when encryption can be broken and for what purpose.
2. International Standards: International cooperation is key to developing harmonized laws on encryption, as cybercrime and terrorism often transcend national borders. Global standards should be created to ensure that breaking encryption does not lead to abuses of power or human rights violations.
3. Security and Privacy Protections: Any legal framework should guarantee that data protection and cybersecurity are not compromised in the process of accessing encrypted communications. Companies should be required to use state-of-the-art encryption and security protocols to minimize vulnerabilities.
4. Clear Safeguards for Individuals: Laws should explicitly protect the privacy rights of ordinary citizens and not just focus on suspects. Provisions should be made to prevent mass surveillance and ensure that any surveillance is carried out in a manner that respects human rights.

Conclusion: Striking the Right Balance

The debate over breaking encryption to protect citizens from criminals and terrorists highlights the complex interplay between national security and individual privacy. While breaking encryption could be a powerful tool in fighting crime, it also raises significant risks to privacy, cybersecurity, and fundamental human rights. As such, a carefully balanced legal framework is necessary—one that ensures the safety of individuals and society without sacrificing the core principles of privacy and freedom.

Governments must work with technology companies and civil society organizations to establish clear, transparent regulations that protect both public security and individual freedoms in the digital age. Only by finding this balance can we ensure that the fight against crime and terrorism does not come at the cost of our fundamental rights.