The U.S. Constitution’s Fourth Amendment may still protect citizens against government-induced encryption vulnerabilities, even if they unknowingly used compromised products.
Backdoors and the Fourth Amendment
Reports suggest the National Security Agency may have paid and pressured tech companies to encourage customers to use weakened encryption products. A law journal article delves into whether three specific legal theories could negate the Fourth Amendment’s requirement for reasonableness in such actions.
The article argues that a challenge to an encryption backdoor might falter if it’s not considered a “search or seizure.” However, the author contends this is flawed. The Fourth Amendment can apply to vulnerabilities beyond the searches they enable, and the creation of the vulnerability itself could constitute a search or seizure.
Could the government compel tech companies to embed encryption backdoors? This analysis examines if constitutional protections were bypassed.
Another theory explored is whether the involvement of technology companies might bring the backdoor under the “private-search doctrine.” The article criticizes this doctrine, particularly its origins, and argues it shouldn’t apply in this context.
Finally, the analysis addresses the idea that customers might have waived their Fourth Amendment rights through the “third-party doctrine.” The article rejects this, citing a lack of customer awareness regarding the backdoor and historical interpretations of the Fourth Amendment.
Ultimately, the article concludes that none of these theories successfully remove the Fourth Amendment’s reasonableness requirement when it comes to encryption backdoors created through government influence.
Posted on July 22, 2025 at 7:05 AM •
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