BLUFFTON, SC – Citing concerns about human trafficking and exploitation of children, 14th Circuit Solicitor Duffie Stone recently endorsed a federal bill requiring tech companies to help investigators decipher hidden data.
If passed, the Lawful Access to Encrypted Data Act would end “warrant-proof” encryption, which can keep information vital to terrorism and trafficking investigations locked inside devices such as Apple’s iPhone. Tech companies would be required to help law enforcement access this data when investigators have a warrant for it.
The bill was filed June 23 by three members of the U.S. Senate Judiciary, including chairman Sen. Lindsey Graham, R-SC. Stone wrote a letter supporting the legislation late last month, in his capacity as National District Attorneys Association president.
“Every day, law enforcement officers execute lawful court orders that allow them to search through the most intimate areas of criminal suspects’ homes and effects,” Stone wrote. “Yet, technology companies have chosen to deny law enforcement lawful access regardless of the presentation of appropriate legal process and judicial decision in clear compliance with the Fourth Amendment.”
The NDAA is the nation’s largest and most influential organization representing elected prosecutors.
Stone’s letter comes nearly a year after he testified before the U.S. Senate Judiciary Committee. He warned of the substantial risk posed to children by online predators. He also argued cellphone companies should be required to heed warrants and court orders to unlock data.
Earlier this year, Stone was among a group of prosecutors and law-enforcement officials who met with representatives of Google, Apple and other tech companies in an attempt to resolve differences about device inaccessibility. Stone said although the companies and law enforcement discussed the problem in good faith, he is convinced federal legislation is the only way around the impasse.
Many law-enforcement agencies and prosecutors have battled with tech companies over encryption, which is used to convert digital information into computer code that limits access to authorized users. The U.S. Justice Department argues that encryption prevents investigators from getting necessary evidence from suspects’ devices and has asked that tech giants provide “lawful access.”
In a news release announcing the legislation, the Senate Judiciary Committee cited several terrorism investigations – including those into attacks in Garland, Texas, and the Pensacola Naval Air Station in Florida – that stalled when the FBI was unable to access encrypted messages on suspects’ cellphones.
The news release also provided examples of thwarted child-exploitation investigations:
- Ryan Lin, a computer scientist with extensive knowledge of encryption and hacking, was accused of cyberstalking and harassment. He also admitted to collecting dozens of images of prepubescent children being sexually abused. However, law enforcement was unable to unlock images stored on Lin’s encrypted devices, limiting its ability to identify victims, notify their parents and guardians, and present a more accurate portrayal of Lin’s conduct at sentencing.
- In 2016, FBI agents identified an IP address sharing image and video files of child pornography using the peer-to-peer program FrostWire. Investigators obtained a warrant and seized a desktop computer believed to contain a trove of child pornography, but the device was encrypted. Unable to unlock the data, the FBI was forced to close its case. The investigation’s target had regular access to children through his employment as a school bus driver.
“I’m a believer in the right to privacy, and I appreciate the value of security and robust encryption,” Stone said. “However, these must give way to lawful search warrants, which are backed by probable cause and authorized by a neutral judge. Many, many people are put in harm’s way when tech companies refuse to cooperate in these cases.”
The bill’s other provisions include:
- Incentives for technical innovation. It directs the U.S. Attorney General to create a competition and award a prize for a lawful-access solution that maximizes privacy and security.
- Technical and lawful-access training, as well as real-time assistance for law enforcement. A Justice Department grant program would allow recipients to increase digital-evidence training and create a call center for advice and assistance during investigations.
