Warrant-proof encrypted devices hinder law enforcement

On any given day, FBI agents, task force officers, analysts and mission support staff across Nebraska and Iowa respond to and investigate bank robberies, cyber intrusions, human trafficking, terrorism threats, civil rights violations, crimes against children, hostile intelligence activities, public corruption, bomb threats, drug trafficking, gang violence or other crimes.

Although these threats can strike our community in vastly disparate ways, our goal is always the same — to protect the American people and uphold the Constitution. And there is one factor in common to almost every case we investigate: our critical need to obtain digital and electronic evidence to mitigate threats, protect victims and apprehend criminals.

The digital environment has changed the way we conduct our investigations. Today the average FBI subject has an exponentially greater array of places where evidence can be stored than a subject 30 years ago. In addition to physical locations and vehicles, subjects often possess smartphones, computers, tablets, cameras, email and social media accounts, internet phone numbers and cloud storage.

Over our 115-year history, the FBI has always adapted to change with innovative ideas to protect lives, bring bad actors to justice and combat newly emerging threats. We continue to do that to this day. Innovation is one of FBI Director Christopher Wray’s key strategic pillars, and the FBI continues to develop cutting-edge, world-class tools.

However, law enforcement in our country is facing another challenge quickly increasing in magnitude: that even once we identify where critical evidence is located, and go to a judge, and obtain a court-authorized search warrant, we still might not be able to obtain the digital evidence we need. Encryption can prevent us from accessing information locked inside a device or managed by a service provider.

Criminals in Nebraska and Iowa are increasingly able to use warrant-proof encrypted devices and communication services to hinder law enforcement. This challenge affects all our state, local, federal and tribal law enforcement partners, impeding our ability to protect our community.

When it is necessary to obtain authority from a judge to intercept communications in real time to disrupt gang violence, organized crime, drug trafficking, public corruption, or other conspiratorial activity, bad actors are no longer limited to land lines and cellular phones. There now exist a multitude of encrypted communication platforms and digital devices subjects can use to perpetrate and communicate about criminal activity out of the reach of law enforcement.

Last year FBI Omaha put over 70 child predators behind bars.  Our mission to identify, locate and recover child victims and bring predators to justice will remain one of our highest priorities in 2024.  However, our declining access to digital evidence is coming at a time when online child sexual exploitation and abuse is at an all-time high.

Two months ago, FBI Omaha led law enforcement teams across Nebraska to arrest 29 individuals on federal and state drug trafficking and firearms charges. We apprehended subjects in Lincoln, Kearney, Ogallala, North Platte, McCook, Brule, Sutherland and several other communities. In another drug trafficking case in the Omaha-Council Bluffs area, we worked with our partners to arrest, indict, convict and sentence 11 individuals responsible for distributing 500-1,000 fentanyl pills a day in Omaha and Council Bluffs. Six drug deaths were attributed to this network. In both these cases we relied heavily on lawful, court-authorized access to digital evidence. Our declining access to digital evidence comes at a time when drug trafficking has proliferated on online platforms.

Effective detection and deterrence of criminal activity like crimes against children, drug trafficking and terrorism on online platforms requires platform owners to develop lawful access capabilities, so that once a crime occurs, law enforcement can bring the perpetrators to account and provide justice for victims.

As a society, it’s imperative law enforcement retains the ability to obtain lawful access to evidence when it is needed to investigate and prosecute criminal activity by going before a judge, presenting facts of our investigation and asking for a search warrant. Law enforcement is simply seeking the same constitutional framework and protections in today’s digital spaces as we’ve had for decades with telephone records, banking, financial payments, health care and other areas where there is a reasonable expectation of privacy.

We want to work with the private sector to find a solution, allowing us to lawfully access the evidence we need to protect our communities while maintaining strong security and privacy for consumers’ communications and information. The FBI remains a strong advocate for both cybersecurity and responsibly managed encryption – encryption that can be reliably decrypted when served with a lawful order.

Criminals cannot be allowed to hide evidence behind an essentially impenetrable digital lock box. If they do, victims will be denied justice, crimes will go unsolved and those who break the law will remain free.