Keeping Secrets: A Constitutional Examination of Encryption Regulation in the United States and India

In July 2010 the Indian Ministry of Telecommunications revived a standing threat to ban BlackBerry services within the country.' Concerned that the BlackBerry messaging system could serve as a method of communication for dissidents, the Ministry demanded that mobile phone developer Research in Motion (RIM) provide government officials with access to encrypted corporate emails.2 India's Ministry of Home Affairs and the Department of Telecommunications threatened, "If they don't follow our guidelines, we will have no option but to ask them to stop their operations in India."3 "[RIM has] so far denied data on the excuse of encryption." The July threat was predicated upon a series of terrorist attacks that occurred in India two years prior.5 In 2008 Lashkar-e-Taiba, a Pakistan-based militant organization, executed violent terror attacks in Mumbai, India, leaving at least 173 people dead and hundreds more wounded.6 "Mobile phones, including BlackBerry smartphones ... were used to coordinate the assault. ', 7 The horrific Mumbai attacks confirmed apprehensions expressed by India's security services more than a year before the assault.8 Indian officials had long been lobbying against the BlackBerry smartphone, claiming "that criminals, militants, and terrorists could use BlackBerrys to send encrypted messages[, which government] agencies could neither intercept, trace, nor decode." 9 The