Content Moderation, Encryption, and the Law

One of the most urgent debates in tech policy at the moment concerns encrypted communications. At issue in proposed legislation, such as the UK’s Online Safety Bill or the EARN It Act put forward in the US Senate, is whether such laws break the privacy promise of end to end encryption by requiring content moderation mechanisms like client-side scanning. But to what extent are such moderation techniques legal under existing laws that limit the monitoring and interception of communications? Today’s guest is James Grimmelmann, a legal scholar with a computer science background who recently conducted a review of various moderation technologies to determine how they might hold up in under US federal communication privacy regimes including the Wiretap Act, the Stored Communications Act, and the Communications Assistance for Law Enforcement Act (CALEA). The conversation touches on how technologies like server side and client side scanning work, the extent to which the law may fail to accommodate or even contemplate such technologies, and where the encryption debate is headed as these technologies advance.