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On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started to take matters into their own hands. Most notably, Apple responded in 2014 by announcing that its operating system, iOS 8, now prevents anyone—including both Apple and law enforcement—from bypassing the device owner’s consent in order to access any data on the smartphone or tablet. Google, Facebook, Yahoo, and Microsoft followed suit soon after.

Standing in contrast to privacy supporters are national security advocates. For months now, the FBI and NSA have expressed great concern for public safety as their ability to collect both real-time data and stored data from terrorists and criminals has been “crippled” by encryption. The FBI’s fears came to fruition through the deadly attacks in both Paris and San Bernardino, California where the attackers allegedly used encryption to avoid detection. Encryption is not only a national security issue, however, as it also affects local law enforcement’s ability to solve criminal cases. For example, the

This Note analyzes why certain communications on smartphones should not be automatically encrypted if the provider does not have the means to decrypt the communication. Although Congress explicitly blocked past legislation from preventing unregulated encryption, current technology trends unreasonably favor civil liberties, undermining law enforcement’s ability to maintain a safe society.

Part I of this Note provides a basic understanding of encryption while also outlining relevant wiretap statutes. Part II provides both the legal background and an analysis using the framework outlined in Katz as it applies to communications transmitted through encrypted smartphones. Part II also outlines the protections afforded to individuals by the Fourth Amendment as well as relevant legislation for electronic surveillance and encryption. Part III of this Note recommends a legal framework for technology firms that employ encryption software on smartphones.