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Short abstract:

This paper examines the controversy around end-to-end encryption sparked by the UK Online Safety Act 2023 and discusses how legislative terms constructed during the debate offer a sidestep to progress the controversy despite the uncertain technical (im)plausibility.

Long abstract:

When the encryption debate is processed through parliamentary procedures, how would legislative decisions alter the terrain of this longstanding debate? In the UK, the Online Safety Act 2023 has established the use of "technology notice", which empowers the regulator Ofcom to require service providers to use "accredited technology" to detect and remove child sexual abuse materials (CSAM) on communication services, including those that are end-to-end encrypted. The Act does not specify how the detection and removal should be done, but the technical (im)plausibility of detecting and removing CSAM without undermining encryption has been contested. Unlike previous controversies around end-to-end encryption, such as UK GCHQ's exceptional access proposal in 2018 and Apple's CSAM scanning in 2021, the uncertain technical plausibility did not stop the controversial clause from becoming law. This marks a departure from earlier controversies, where technical proposals were abandoned due to the unpromising feasibility of keeping encryption intact.

Intrigued by the policy aspect of this sociotechnical controversy, where technical (im)plausibility remains contested but no longer a deal-breaker, I map the controversy around end-to-end encryption as it unfolds in the legislation of the Act. Specifically, I map the issues contested and settled across different stages of the legislation (Marres, 2007, 2015, 2020; Asdal, 2008; Asdal and Hobæk, 2020). By analysing which issues become prominent (or not), by whom and at what stages, I discuss how legislative terms constructed during the debate offer a sidestep to progress (not necessarily positive) the controversy around end-to-end encryption despite the uncertain technical (im)plausibility.