Under what guise of law, would state actors (UK, US, etc.) be able to issue secret (unpublished) subpoenas that require industry / utilities to provide government access to their systems? Examples of access include phone companies, which were forced during the Clinton administration to build digital networks that government agents could tap.

The modern day version of "tapping" is dismantling end to end encryption of messaging systems such as Facebook or WhatsApp

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    When you say "laws" do you include things like subpoenas which are not actually laws but work under the legal system? – D M Oct 3 '19 at 22:01
  • @DM Yes, I am not a lawyer: I am presuming that subpoenas and other instructions are done under the guise of law. As I understand it a subpoena is is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure – gatorback Oct 4 '19 at 1:01
  • @gatorback I have edited your question to reflect that comment. There is a huge difference between a secret subpoena and a secret law (a law that people don't know exists). Please roll back my changes if this isn't what you are asking about. – Martin Bonner supports Monica Oct 4 '19 at 12:39
  • If you really don't distinguish between courts and [other] government agencies, you need to make that clear in the question, and possibly add a 'united-states' tag. – Tim Lymington Nov 3 '19 at 17:56

In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret.

For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws.

In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it.

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Everything which is not forbidden is allowed

Governments can ask industry/utilities to do something and they can choose to comply. Unless the law prohibits the asking or the doing this is totally legal.

Now, laws can't be secret - acts of the legislature and court judgments have to be published or they are not the law. However, administration of the law by the executive can have secret elements - the police can act undercover, wiretaps (with a warrant) are not publicized etc.

This is all sensible and proper that some things can be done in secret and other things must be done in public, however, it does mean that the law lags behind the world. You can't have laws about areoplanes before there are areoplanes and you can't regulate end-to-end encryption before there is end-to-end encryption. In the gap between initiation and regulation or litigation there is a legal grey area where no one is sure what's permitted and what's forbidden.

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    "This is all sensible and proper" - Well, the basic idea might be, but the government does sometimes cross the line. I don't think the government demanding that the phone companies turn over everyone's phone records and demanding that the phone companies keep that secret was sensible and proper. – D M Oct 4 '19 at 2:58
  • @DM clarified what I meant – Dale M Oct 4 '19 at 3:03
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    end-to-end encryption is not a recent invention. Not only was Bletchley Park breaking it during the war, Francis Walsingham was breaking it for Elizabeth I in the 1580's and Julius Caesar was using it BC. – Martin Bonner supports Monica Oct 4 '19 at 12:49
  • Sometime even laws can be secret. – ohwilleke Jul 31 at 19:45

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