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A pluralist and interdisciplinary approach to encryption regulation

The importance of trust in encryption is paramount, influencing user adoption and acceptance of the technology. A pluralist and interdisciplinary approach reveal that trust extends beyond the technology itself to include those who develop, provide, and regulate it. If encryption is perceived as unsafe or insecure, trust is compromised. Mandatory backdoors, allowing unauthorized access, face opposition as they erode trust in the technology, the government, and potential malicious actors. Trust is foundational to encryption, encompassing not only the technology but also providers and regulators. Proposed encryption regulations must be evaluated based on their impact on trustworthiness. Questions should be raised: Does the regulation strengthen, maintain, or weaken trust in encryption and among relevant parties? Measures that diminish trust should be discarded, while those supporting or building trust should be explored. Trust emerges as a core consideration in crafting encryption laws and policies. A comprehensive approach considers legal, social, and technical dimensions when addressing the complex task of regulating encryption. Relying solely on legal means is insufficient. Rejecting a legal-centric mindset allows acknowledgment of plural normative orders in a digital networked world. Understanding the critical technical and social principles and values surrounding encryption regulation becomes essential. Therefore, when formulating technology laws and policies, a pluralist and interdisciplinary approach, incorporating fundamental principles and values, is crucial to comprehensively address the legal, technical, and social aspects of the technology at hand.
Journal Article
Type of thesis
LexisNexis NZ Ltd.
This is an author’s accepted version of an article published in New Zealand Law Journal. © 2021 LexisNexis NZ.