Decrypting the Encryption Debate A Framework for Decision Makers (2018) / Chapter Skim
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4 Information Needs of Law Enforcement and the Intelligence Community
4 Information Needs of Law Enforcement and the Intelligence Community
Pages 36-48
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From page 36... ...
Chapter 5 looks at options for law enforcement to obtain access to plaintext that is now encrypted. GOALS OF LAW ENFORCEMENT OFFICIALS AND INTELLIGENCE ANALYSTS Law enforcement officials and intelligence analysts have different missions and work with different tools, legal frameworks, and norms, but both are attempting to piece together events or future plans from incomplete or fragmented information.
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From page 37... ...
THE VOLUME AND DIVERSITY OF INFORMATION RELEVANT TO LAW ENFORCEMENT AND THE INTELLIGENCE COMMUNITY The ways people communicate, engage in commerce, and otherwise live their lives create information across a wide range of networks, devices, and communications streams. For example, the Pew Foundation has reported that only 8 percent of U.S.
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From page 38... ...
Metadata is generally defined as data that provides information about other data. When the term metadata arises 4 Foreign intelligence is "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities" (50 U.S.
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From page 39... ...
Not all metadata is necessarily covered by the third-party doctrine; for example, a time stamp recorded when an encrypted file is created on a computer would be considered metadata about that file but would not have been provided to a third party if the computer is owned by the target of the investigation. Finally, metadata is sometimes used to refer to any noncontent information, even if not necessarily associated with a specific piece of encrypted data, that may be useful as an alternative source of information for an investigation if the encrypted data cannot be decrypted.
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It estimates that 18 percent of message traffic is encrypted today and that this will grow to 22 percent by 2019 based on projected growth in the use of instant messaging. The report also estimates that roughly 47 percent of all smartphones and tablets in the United States have full disk encryption and observes that if Android devices adopt universal disk encryption, the vast majority 6 National Academies of Sciences, Engineering, and Medicine, 2016, Exploring Encryption and Potential Mechanisms for Authorized Government Access to Plaintext: Proceedings of a Work shop, The National Academies Press, Washington D.C., p.
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From page 41... ...
. that impacts investigations across the board -- narcotics, human trafficking, counterterrorism, counterintelligence, gangs, organized crime, child exploitation."10 In November 2016, the Manhattan District Attorney's Office reported that "423 Apple iPhones and iPads lawfully seized since October 2014 remain inaccessible due to default device encryption" and that 10 percent 8 United States v.
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From page 42... ...
grant recipients." In the survey, more than 30 percent of respondents reported that the use of encryption by child pornography offenders has significantly increased.13 The data cited above strongly suggest that widespread encryption is having a serious and growing negative impact on the ability of law enforcement to collect relevant plaintext. Although Director Wray provided a broad characterization of the crimes whose investigation is being impeded, and one can make assumptions about the nature of the cases being pursued by the Child Exploitation Prevention and Interdiction Working Group, there remains a lack of specific data about what kinds of investigations are being impeded and the extent to which investigations were successful by pursuing other routes.
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From page 43... ...
To illustrate the national security challenges posed by encryption, 2015 testimony to the Senate Judiciary Committee by then–FBI Director James Comey and then–Deputy Attorney General Sally Quillian Yates described how encryption is used when recruiting terrorists: With the widespread horizontal distribution of social media, terrorists can spot, assess, recruit, and radicalize vulnerable individuals of all ages in the United States either to travel or to conduct a homeland attack. As a result, foreign terrorist organizations now have direct access into the United States like never before.
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Location information or metadata would be very useful if the government's object were to determine where a particular exchange of packages occurred, for example, but would be less useful in determining what was in the packages. The law enforcement community thus argues that it is more difficult to convince a jury of criminal intent using metadata evidence than with content evidence.
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From page 45... ...
Finally, companies are increasingly distributing data across multinational networks -- for example, to store data closer to where it is used. As a result, some relevant plaintext in domestic cases is accessible only through international legal mechanisms that may be slow and cumbersome, as well as unfamiliar to most state and local law enforcement investigators.
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• The location history of mobile phone users can be obtained from cell service providers. In addition, many smartphone applications themselves capture location information and transmit it to the providers of services associated with those applications.
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Service pro viders are adopting technical measures to limit data retention to protect user privacy and have asserted constitutional defenses to producing such data, however, and its future utility is not certain. • Worn or implanted technology, such as fitness monitors and pacemakers and insulin pumps controlled from smartphones, provide information about the activities of their users and may produce useful evidence in some cases.18 Of course companies could choose to limit the collection of such information if, for example, customers express concerns about privacy or the ability of the government to obtain this information and assuming it is not necessary for their service or business model.
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From page 48... ...
Such an effort would be facilitated by more rigorous data collection about the impact of encryption on federal, state, and local law enforcement and the effectiveness and costs of alternatives.
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