Ubiquitous access to interconnected mobile devices and other advanced communications systems has transformed how we live, work, and communicate, enabling global communication with the touch of a finger to a smartphone screen. This expansion of interconnectedness is something we all depend on; however, it has also provided criminals with a new tool and created major worldwide challenges for law enforcement investigators.
Today, the “footprints” left at the “scene” are no longer physical pieces of evidence, but digital traces that can be accessed from anywhere in the world through smartphones or computers. These are the modern-day fingerprints that we, law enforcement, use to uncover offenders and increase public safety. We need access to this digital information to solve crimes, locate perpetrators, protect victims, and ensure successful prosecutions.
The ever-growing global challenge we are facing is that laws have not kept pace with technology. This disconnect has created a significant public safety problem, which, in the law enforcement community, we commonly refer to as “Going Dark.”
There are two overlapping challenges of Going Dark: (1) inability to intercept real-time information from “data in motion” such as active phone calls, emails, and live chat sessions and (2) little or no access to “data at rest” such as emails, text messages, photos, and videos stored on computers, cellphones, tablets, flash drives, and other digital devices. These challenges are becoming increasingly prevalent; more and more often, both real-time communication and stored data are encrypted, making them inaccessible to law enforcement.
The tragic events in Paris, France, and other events around the world have reignited the conversation and brought the challenges caused by encryption to the forefront of the minds of lawmakers, the public, and the media.
However, this issue is not new to the IACP or the law enforcement community. The IACP has long been discussing this issue and the global implications it has on public safety. In February 2015, the IACP held a summit on Going Dark: Addressing the Challenges of Data, Privacy, and Public Safety. The summit brought together law enforcement executives, investigators, legal specialists, and subject matter experts to explore legal, technical, policy, and operational issues associated with the gathering and use of data related to communications and mobile devices.
As a result of that summit, the IACP released a report that details the technological and legal landscape surrounding the issue of Going Dark and defines the barriers to access faced by public safety officials. It also outlines the key ideas that law enforcement leaders should know when discussing the issue of Going Dark. Those themes are the following:
1. Continuing law enforcement’s longstanding commitment to individual liberty.
2. Recognizing that network security measures such as encryption are important, appropriate, and justifiable.
3. Adhering to constitutional protections and time-honored, established legal processes that guarantee judicial review and approval of search warrants.
4. Understanding that technology is evolving and solutions are being developed that prevent the discovery and collection of information—potential evidence—from digital devices and communications systems, even with a court order.
5. Knowing that the harms resulting from the inability of technology companies to comply with court-ordered surveillance warrants are not abstract; they have very real, tangible consequences in many criminal and national security investigations. The threat is real, and it is already hindering law enforcement’s ability to keep the public safe.
6. Conveying that we are not seeking to expand the surveillance authority of government, but rather to ensure that evidence collection by lawful court order can be accomplished when authorized and needed.
I highly encourage all of you to read this report and distribute it within your own and neighboring agencies. This report is not only a good internal document for law enforcement so that you can fully understand this complex issue, but it is also a great tool to provide to policy makers when you are meeting with them to discuss public safety issues. This report provides an extensive overview of the problem and can help educate policy makers as they consider potential solutions.
In addition to this report, I also want to make you aware of the IACP’s advocacy and outreach efforts on the issue of Going Dark. We have been meeting with senior law enforcement officials from governments around the globe to seek out solutions to this issue. The IACP has also joined forces with the National District Attorneys Association (NDAA) to call for specific legislative changes to the Communications Assistance for Law Enforcement Act, FCC rules, and Electronic Communications Privacy Act.
The IACP and the NDAA have been meeting with key U.S. congressional members and senators on this issue. In these numerous meetings and discussions, we are constantly being asked to provide real-life case examples in which law enforcement has encountered problems accessing digital evidence and information on smartphones and computers. I urge you to send us criminal case examples of these day-to-day barriers you are facing so that we can highlight them in our discussions, especially when we are in meetings with lawmakers from your home states and districts. To submit these criminal case examples, please email email@example.com. I thank you in advance for your participation.
Additionally, the IACP and NDAA will be hosting a series of congressional briefings in early 2016 to ensure that elected officials in the United States are aware of the challenges we face and that they are committed to finding a solution to this critical issue. ♦
Please cite as:
Terrence M. Cunningham, “Presidential Focus: Going Dark and the Challenges of Gathering Electronic Evidence,” President’s Message, The Police Chief 83 (January 2016): 6.