Rule of Law Rhetoric in Encryption's ‘Going Dark’ Debate

Encryption’s ‘going dark’ debate concerns the availability and seamless use of strong forms of encryption to the general public, and its negative effects on law enforcement and intelligence agencies. In debating appropriate regulatory approaches, commentators typically reach for a privacy vs security heuristic: agencies tend to advance policies that privilege security over privacy, and their critics advance the opposite. However, critics of encryption have recently used ‘rule of law’ rhetoric to bolster arguments that more needs to be done to curb encryption’s perceived harms. This paper discusses whether such invocations of the ‘rule of law’ are disingenuous political rhetoric, or are worthy of attention given understandings of the rule of law paradigm in present-day discourse.