There Is No 'Going Dark' Problem

from the to make investigative omelets, you've got to crack a few phones dept

Former FBI Director James Comey made plenty of headlines with his insistence cellphone encryption would be the end of law enforcement as we know it. Comey’s assertions made it seem as though regular police investigative work was no longer of any use and that any and all evidence pertinent to cases resided behind cellphone passcodes.

He insisted the problem would only get worse in the future. If not put to an end by legislated backdoors or smart tech guys coding up “safe” holes in device encryption, we may as well accept the fact that no criminal committing more than a moving violation would ever be brought to justice.

Default encryption does pose a problem for law enforcement, but it’s nowhere near as insurmountable as Comey has portrayed it. Multiple FOIA requests handled through MuckRock have shown law enforcement still has several phone-cracking options at its disposal and doesn’t seem to be having many problems recovering evidence.

This is superbly illustrated in documents obtained from the Tulsa and Tuscon (AZ) Police Departments by Curtis Waltman. Tuscon PD documents [PDF] show law enforcement officers are using tools crafted by the same company that provided the hack to the FBI in the San Bernardino case, among several other options. But the real motherlode is the Tulsa PD’s log of cracked phones.

The kicker really is how often these are being used – it is simply really hard to believe that out of the 783 times Tulsa Police used their extraction devices, all were for crimes in which it was necessary to look at all of the phone’s data… There are some days where the devices were used multiple times – Tulsa used theirs eight times on February 28th of this year, eight again on April 3rd, and a whopping 14 times on May 10th 2016. That is a whole lot of data that Tulsa was able to tap into, and we aren’t even able to understand the why.

The document contains page after page of cracked phones, ranging from Samsungs to HTCs to LGs… even iPhones (5 and 6). “Going dark” remains a Comey fairy tale, for the most part, if these documents are anything to go by.

And there’s apparently very few rules for deployment of cellphone-cracking devices. Only one PD in Arizona returned any guidelines in response to requests and those rules basically state there are no rules. The Mesa PD’s Computer Forensic Unit makes the most of its limited resources by limiting its work to… any crime at all.

This is the list of criminal activity the unit provides forensic work for, listed in order of priority.

Sexual Assault
Child Crimes
(which I assume means “crimes against children,” rather than crimes committed BY children)
Aggravated Assault/Robbery
Property Crimes
All other felonies
All misdemeanors

Everything. That would explain the number of cellphones accessed by these PDs. Presumably other PDs are also operating under very loose guidance or none at all.

This sort of intrusiveness should be limited to serious felonies and investigations where it’s plainly apparent the best route to evidence runs through the suspect’s cellphone. Otherwise, law enforcement agencies are just using these tools because they have them, not because they necessarily need them.

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Comments on “There Is No 'Going Dark' Problem”

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Re: Re:

Since when was it a crime for people to give away what they created?
Also, since when was the law meant to protect a business model that has gone long past it sell by date?

Withe the Internet their is no need for a gatekeeper to decide what gets published, and as a side effect keep most of the profits for themselves.


Re: Re: Shilling for the MPAA

If there’s a going dark problem, it’s LAW ENFORCEMENT ignoring the public, not responding to FOIAs…

Now, the issue with pirates is that there’s this world-wide, super-simple copying machine called the internet that everyone has access to, including my 8 year old child. And if you lock it down with DRM, he just whips out his phone and makes a movie.

Do you seriously think that it should be illegal to do what my 8 year old does effortlessly with his toys? I sure hope law enforcement has better things to do than discipline my 8 year old!


Re: Re:

There has always been a going dark ‘problem’. A century ago people had safes that could not be forced open by police. Fifty years ago, people could use fairly weak encryption (by today’s standards) that police lacked the computer power to decrypt. Even writing in a foreign language that no one was available to translate could cause people to go dark.

None of this is new. Police work has ALWAYS had these problems. What is new though, is that police have access to more information on any suspect today than at any time before in history.

Going dark is Comey-speak for a return to how police investigated crimes in the 1980s and 1990s. And you’ll notice, there were no problems convicting people in courts in those decades.


Re: Re:

Because the police are meant to have probable cause to believe a crime has been committed before they go looking at a persons possession for evidence of that crime. For example, a traffic stop for a minor traffic violation should not be an excuse to search the car, its occupants and their devices for evidence of crimes not related to the traffic stop.


Re: Re: Re: Re:

Because the police are meant to have probable cause to believe a crime has been committed before they go looking at a persons possession for evidence of that crime. For example, a traffic stop for a minor traffic violation should not be an excuse to search the car, its occupants and their devices for evidence of crimes not related to the traffic stop.

The Techdirt editorial creates a bit of confusion on this point. Yes, the police ought to be treating this as a Fourth Amendment search, with all the protections and process that requires (warrant, probable cause, particularity of the warrant, etc.). However, if they treat it as such (and admittedly, there is no evidence that they do, or that they have rules telling them to do so, or that they face any meaningful penalty for not doing so), it makes sense that they ought to perform lawful searches whenever feasible, since the preconditions here (particularly the precondition of probable cause) assume that they are not just cracking everything in sight. In practice, their strong aversion to Fourth Amendment protections suggests they cannot be trusted with the tools to crack any phone.

Your example of a traffic stop is a good one. There is no reason that the traffic stop should give them the legal blessing to perform a full vehicle teardown. You started from the assumption that they had some suspicion that some crime might have been committed, and would then leverage that into a full search for unrelated criminality. Grandparent started from the assumption that they had a legal blessing for their actions (a valid warrant that includes the phone in the list of places to search) and questioned why not search everywhere that the warrant entitles them to search.


Re: Re: Re: Re:

For example, a traffic stop for a minor traffic violation should not be an excuse to search the car, its occupants and their devices for evidence of crimes not related to the traffic stop.

See, they might have been speeding because they were fleeing the scene of a crime and there might be evidence of the crime on a phone in the car.

Then again, if they were driving a safe and legal manner it might be because they are trying to avoid calling attention to themselves because they are actually fleeing the scene of a crime and there might be evidence of the crime on a phone in the car.

So, as you can see, the gods, I mean cops, need to be able to search anyone’s phone at any time, because you just never know what they may be hiding.

Dave Cortrightsays:

Sounds like an "unreasonable search and seizure" to me

IANAL but at some point a defense attorney is going to make the case that the evidence gathered was due to a violation of the 4th Amendment. And I think they have a good chance of winning. But it might require a lot of different cases and appeals before that happens. Arc of justice is long and all.

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