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Journal of Technology Law & Policy

Document Type

Article

Abstract

In the early 1970s, the United States began using submarines to place recording devices on an underwater sea cable off the coast of Eastern Russia. The cable transported communication between two Russian bases and every so often the United States would retrieve the recordings and listen for useful information. The operation was known as Ivy Bells and although it was discontinued in 1981, the technique of tapping underwater sea cables to gather information is still used today. Governments use many methods to gather data as they try to guard against terrorist attacks and otherwise protect national security. Non-state actors and states often try to prevent their communications and other data from being read by encrypting it. For example, HTTPS, and SSL are commonly used together to encrypt data traveling over the internet. States are interested in developing encryption techniques that no one else can break while maintaining techniques that can break encrypted data created by other states. For example, the European Union, Switzerland, and the NSA are all trying to develop quantum computing, which may be useful for breaking encryption.

The International law principle of sovereignty applies to territorial decryption activities and provides guidance on when a state may break the encryption on messages sent by other states. However, breaking encryption on data that is traveling on the high seas or traveling within a state’s territory does not violate sovereignty. This is true for every method of breaking encryption that I discuss in this paper. However, states must be careful of communications that meet the diplomacy and consular protection requirements and must leave these communications alone if they are found. States may also share data gathered from their territory with other states without violating sovereignty or not. Current state practice seems to suggest, however, that it is not a violation of sovereignty.

In Part II, I will explain the basics of encryption, networking, and how data travels over the internet securely, In Part III, I will explain the aspects of sovereignty that are most applicable to breaking encryption and tapping fiber optics cables on the high seas. In Part IV, I will discuss several techniques for gathering data and breaking encryption that may be in use by states today, and how the law applies to each technique. I will discuss which scenarios do not violate sovereignty and which scenarios do violate sovereignty.

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