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Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?

Technology has forever changed the world we live in. We’re online, in one way or another, all
day long. Our phones and computers have become reflections of our personalities, our interests,
and our identities. They hold much that is important to us.

And with that comes a desire to protect our privacy and our data—you want to share your lives
with the people you choose. I sure do. But the FBI has a sworn duty to keep every American safe
from crime and terrorism, and technology has become the tool of choice for some very
dangerous people.

Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a
significant public safety problem.

We call it “Going Dark,” and what it means is this: Those
charged with protecting our people aren’t always able to access the evidence we need to
prosecute crime and prevent terrorism even with lawful authority.

We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.

We face two overlapping challenges. The first concerns real-time court-ordered interception of what we call “data in motion,” such as phone calls, e-mail, and live chat sessions.

The second challenge concerns court-ordered access to data stored on our devices, such as e-mail, text
messages, photos, and videos—or what we call “data at rest.” And both real-time communication and stored data are increasingly encrypted.

Let’s talk about court-ordered interception first, and then we’ll talk about challenges posed by
different means of encryption.

In the past, conducting electronic surveillance was more straightforward. We identified a target
phone being used by a bad guy, with a single carrier.
We obtained a court order for a wiretap, and, under the supervision of a judge, we collected the evidence we needed for prosecution.

Today, there are countless providers, countless networks, and countless means of communicating. We have laptops, smartphones, and tablets. We take them to work and to school, from the soccer field to Starbucks, over many networks, using any number of apps. And so do those conspiring to harm us.

They use the same devices, the same networks, and the same apps to make plans, to target victims, and to cover up what they’re doing. And that makes it tough for us to keep up. If a suspected criminal is in his car, and he switches from cellular coverage to Wi-Fi, we may be out of luck.

Conclusion:

If he switches from one app to another, or from cellular voice service to a voice or messaging app, we may lose him. We may not have the capability to quickly switch lawful surveillance between devices, methods, and networks. The bad guys know this; they’re taking advantage of it every day.

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