Police wielding wiretaps have for the first time been stymied by encryption, pointing to a technical capability gap as detectives and FBI agents try to penetrate increasingly sophisticated networks and devices.
State and federal judges authorized 3,395 wiretaps in 2012 and encryption was encountered in 15 of those cases, according to a June 28 report by the Administrative Office of the U.S. Courts. In four instances, police couldn’t decipher the plain text of messages, something they hadn’t previously encountered, according to the report.
The report, which gave no information about the type of wiretaps or targets, underscores the growing use of encryption, or scrambling of messages so outsiders can’t read them. The process is legal, and software is widely available. For instance, a query on Google Inc.’s shopping search engine for “encryption” returns 167,000 results.
“It’s a huge issue,” Peter Modafferi, chief of detectives in Rockland County, New York, who heads a police operations committee for the International Association of Chiefs of Police, based in Alexandria, Virginia. “It’s hindering our ability to conduct wiretaps and surveillance.”
Law enforcement groups have pushed for expanded capabilities, including requiring companies to build intercept tools that allow surveillance authorized by court orders.
Such back doors create vulnerabilities and weaken networks, Susan Landau, an engineer who studies privacy, said in an interview.
“On balance the U.S. is better off with the use of strong cryptography,” Landau said in an interview. “The FBI and law enforcement in general is going to have to go to more clever ways to wiretap.”
Finding encrypted roadblocks “is not a major problem, it’s a trend,” Scott Burns, executive director of the National District Attorneys Association, an Alexandria, Virginia-based group that represents criminal prosecutors, said in an interview. “It becomes a concern if the numbers grow.”
Law enforcement officials have been adapting to evolving technology since mobile phones came into use, Burns said.
“It’s a continuation of what we’ve been dealing with for decades,” Burns said. “It is perfectly legal to encrypt communications, and that is then the challenge for those of us in law enforcement.”
Law enforcement groups such as the police chiefs’ association have asked Congress to revise the Communications Assistance for Law Enforcement Act, or Calea, to compel more companies providing communications services to build intercept tools that let agencies conduct surveillance with court orders.
In May, a Justice Department official said President Barack Obama’s administration may seek fines for companies offering Internet services that don’t build in ways for authorities to conduct surveillance. No decisions have been made, and efforts to fine companies that don’t comply with electronic-surveillance requests from law enforcement agencies are opposed by industry groups.
The Justice Department official, Jenny Durkan, U.S. Attorney for the Western District of Washington, made those comments before contractor Edward Snowden last month exposed U.S. classified programs by the National Security Agency to collect phone records of Americans and monitor Internet communications of suspected foreign terrorists. Microsoft Corp., Yahoo Inc., Apple Inc. and Facebook Inc. subsequently said they had received warrants for information from government entities.
The fallout may slow efforts for new requirements for companies to design ways for authorities to have access to networks, Ben Wizner, director of the speech, privacy and technology project of the American Civil Liberties Union, a civil rights group, said in an interview.
“The furor over the Internet companies’ participation in the NSA’s Prism program will dampen the momentum for Calea II, as it should,” Wizner said.
Law enforcement officials have a right to listen to conversations if they obtain a warrant, he said.
“That’s quite a different thing from saying that society and technology need to be re-engineered to make sure they can do that,” Wizner said.
FBI proposals aim to preserve law enforcement officials’ longstanding ability to investigate suspected criminals, spies and terrorists subject to a court order signed by a judge, J. Jason Pack, an FBI spokesman, said in an e-mail yesterday.
Proposed changes aim to do nothing more than “update the law to reflect the progress of the means of modern communications,” Pack said.
The global market for security software grew to $20.6 billion last year, from $18.3 billion two years earlier, according to data compiled by Bloomberg Industries.
“What you’re seeing now is this proliferation and awareness of securing your phone call,” Mike Janke, chief executive officer of closely held Silent Circle, an encryption-software supplier that lists Washington as a base, said in an interview.
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