Encryption and Evolving Technology: Implications for U.S. Law Enforcement Investigations

Kristin Finklea at the Congressional Research Service: “Because modern-day criminals are constantly developing new tools and techniques to facilitate their illicit activities, law enforcement is challenged with leveraging its tools and authorities to keep pace. For instance, interconnectivity and technological innovation have not only fostered international business and communication, they have also helped criminals carry out their operations. At times, these same technological advances have presented unique hurdles for law enforcement and officials charged with combating malicious actors.

Technology as a barrier for law enforcement is by no means a new issue in U.S. policing. In the 1990s, for instance, there were concerns about digital and wireless communications potentially hampering law enforcement in carrying out court-authorized surveillance. To help combat these challenges, Congress passed the Communications Assistance for Law Enforcement Act (CALEA; P.L. 103-414), which among other things, required telecommunications carriers to assist law enforcement in executing authorized electronic surveillance.

The technology boundary has received renewed attention as companies have implemented advanced security for their products—particularly their mobile devices. In some cases, enhanced encryption measures have been put in place resulting in the fact that companies such as Apple and Google cannot unlock devices for anyone under any circumstances, not even law enforcement.

Law enforcement has concerns over certain technological changes, and there are fears that officials may be unable to keep pace with technological advances and conduct electronic surveillance if they cannot access certain information. Originally, the going dark debate centered on law enforcement’s ability to intercept real-time communications. More recent technology changes have potentially impacted law enforcement capabilities to access not only communications, but stored data as well….(More)”