The Technology Boundary: A Perennial Issue

Technology as a boundary for law enforcement is by no means a new issue in U.S. policing. In the 1990s, for instance, there were concerns that increasing adoption of technologies such as digital communications and encryption could hamper law enforcement's ability to investigate crime. Communications Assistance for Law Enforcement Act (CALEA)

In the 1990s, there were "concerns that emerging technologies such as digital and wireless communications were making it increasingly difficult for law enforcement agencies to execute authorized surveillance." Congress passed the Communications Assistance for Law Enforcement Act (CALEA; P.L. Among other things, CALEA requires that telecommunications carriers assist law enforcement in executing authorized electronic surveillance. There have been concerns that malicious actors, from savvy criminals to terrorists to nation states, may rely on this very encryption to help conceal their illicit activities. If companies like Apple and Google provide for encryption of data on locked mobile devices—and do not maintain the keys to unlock these devices—the companies may be unable to assist law enforcement in carrying out court-authorized searches of content stored on the device—even if the police possess a warrant. As these companies have noted, because they cannot break the encryption of a locked device, they also cannot provide decrypted information to authorities. 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. Following the December 2, 2015, terrorist attack in San Bernardino, CA, investigators recovered a cell phone belonging to one of the suspected shooters. FBI Director Comey testified before Congress two months later and indicated that the bureau was still unable to unlock the device. On February 16, 2016, the U.S. District Court for the Central District of California ordered Apple to provide "reasonable technical assistance to assist law enforcement agents in obtaining access to the data" on the cell phone. The outcome of this case may have implications for how law enforcement and policymakers respond to the broader conversation on enhanced encryption. Policymakers may weigh whether aiding federal law enforcement will involve incentives or requirements for communications and technology companies to provide specified information to law enforcement, enhanced investigative tools, bolstered financial and manpower resources to help law enforcement better leverage existing authorities, or combinations of these and other options. Even if policymakers believe there is a significant problem with law enforcement's ability to carry out authorized activities, they may debate whether expanding requirements for certain technology companies and communications services or adding to law enforcement's toolbox of authorities may be the more appropriate options. Some have argued that another option may be to enhance law enforcement's financial resources and manpower. This could involve enhancing training for existing officers or hiring individuals with bolstered technology expertise.
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.
There are concerns that enhanced encryption may affect law enforcement investigations. For instance, following the December 2, 2015, terrorist attack in San Bernardino, CA, investigators recovered a cell phone belonging to one of the suspected shooters. FBI Director Comey testified before Congress two months later and indicated that the bureau was still unable to unlock the device. On February 16, 2016, the U.S. District Court for the Central District of California ordered Apple to provide "reasonable technical assistance to assist law enforcement agents in obtaining access to the data" on the cell phone. The outcome of this case may have implications for how law enforcement and policymakers respond to the broader conversation on enhanced encryption.
If evidence arises that investigations are hampered, policymakers may question what, if any, actions they should take. One option is that Congress could update electronic surveillance laws to cover data stored on smartphones. Congress could also prohibit the encryption of data unless law enforcement could still access the encrypted data. They may also consider enhancing law enforcement's financial resources and manpower, which could involve enhancing training for existing officers or hiring more personnel with strong technology expertise.
Some of these options may involve the application of a "back door" or "golden key" that can allow for access to smartphones. However, as has been noted, "when you build a back door ... for the good guys, you can be assured that the bad guys will figure out how to use it as well." This is often maintained to be an inevitable tradeoff. Policymakers may debate which—if either—may be more advantageous for the nation on the whole: increased security coupled with potentially fewer data breaches and possibly greater impediments to law enforcement investigations, or increased access to data paired with potentially greater vulnerability to malicious actors.