'Going Dark' Is Bullshit, Says Yet Another Report Detailing All The Ways Law Enforcement Can Obtain Evidence

from the in-the-land-of-the-deliberately-blind,-the-no-eyed-agitator-is-king dept

"Going dark" is a "problem" that appears to be localized almost entirely at the federal level. While numerous options have presented themselves over the years, the FBI, DOJ, and the president's law enforcement commission continue to claim encryption poses insurmountable problems to law enforcement. With the exception of one Manhattan prosecutor, no one else seems to believe encryption is much of a problem.

Encryption may be limiting access to the contents of a few devices and a handful of IMs, but it's really not stopping investigators from securing evidence or prosecutors from securing convictions. Time after time after time after time it's been pointed out a wealth of options are available to law enforcement. And every new iteration of "smart" things just gives them more. Encrypted phones may eliminate the most direct route to evidence, but the number of workarounds is nearly infinite.

People are tracking their movements and actions with more accuracy than ever. Smart meters track utility use with an intense amount of detail. Citizens are installing cameras in their homes and granting access to devices that record their conversations and log their interactions with any number of services. The only way the FBI, DOJ, et al can say anything is "dark" is if they're walking around with their eyes closed. And that appears to be the case.

Yet another lengthy report on the "golden age of surveillance" has been released, highlighting the surveillance side doors available to law enforcement if the "front door" appears to be locked. "We can't get any evidence!" claim consecutive FBI directors, pointing to the agency's uncounted pile of locked devices.

Meanwhile:

In New Hampshire, for instance, a man was accused of shooting his brother in the arm in a dispute in a driveway. Footage of the altercation was captured by several Ring cameras owned by neighbors, who provided their footage to police. A judge allowed audio of the incident to come in, ruling that the defendant should have expected the driveway communications between himself and his brother to be publicly exposed.

Connected devices have also been used to contradict an account of events. A Pennsylvania woman who alleged she was raped was later charged with making false statements and tampering with evidence after Fitbit data she voluntarily provided to police suggested she had been moving around her home during the time she claimed to be asleep.

In other instances, police have obtained warrants to access data from connected devices. In Arkansas, unusual water usage tracked by a smart meter was used to substantiate claims that a defendant attempted to clean up a murder scene. Prosecutors also sought to obtain a warrant for recordings of the defendant’s Amazon Echo, but the man eventually voluntarily disclosed the recordings.

And in the case of a Connecticut man currently facing trial for the murder of his wife, police have obtained warrants for the victim’s Fitbit and several other connected devices throughout the house that revealed movements and other information contradicting his account of events.

That's just a small part of the Brennan Center's report, which covers nearly every evidentiary avenue law enforcement has access to, as well as the concerns raised by always-on surveillance… even if citizens are willingly participating in their own surveillance. There's a lot of Fourth Amendment questions yet to be answered, but a lot of the answers will come down to whether or not courts view willingly sharing data with companies the same as willingly sharing it with the government.

Any law enforcement official complaining about encryption is being disingenuous. The lack of direct access to things sought by warrants isn't the same as working blindly in the dark. Cops have tons of options they've never had before -- options that replace jackboots on the ground, mind-numbingly long stakeouts, and hanging out in a nondescript van hoping to overhear something incriminating. The investigative cost -- at least in terms of personnel and man hours -- has steadily been decreasing. Reams of data are often only a subpoena away. And for a few thousand dollars, private contractors are on tap to turn data firehoses into useful streams of information.

How many attack vectors are there for evidence? An insane amount. Onboard vehicle communication systems like OnStar have eavesdropped on conversations for years. The addition of Bluetooth connections to in-car entertainment systems has provided another point of access for data that may otherwise be locked inside an encrypted phone. Built-in navigation systems track drivers and their favorite destinations.

Smart gadgets in homes record conversations, track movements, and give investigators clues as to whether anyone was in a home at certain points in time. Fitbits and similar devices track people's movements in areas where cars can't go. They also provide handy biometric info that has never been available to investigators prior to this point in time.

And that only covers the surveillance citizens aim at themselves. Law enforcement has plenty of always-on options of its own that provide it streams of useful data and evidence investigators need no warrants to access. Agencies have augmented their aerial surveillance with powerful cameras capable of tracking movements across entire cities. Low-cost drones provide more aerial surveillance without the expense of keeping manned aircraft aloft. Millions of license plate records are gathered every day by thousands of plate readers. Interlinked databases allow law enforcement to track people's movements across the country if need be.

Then there's the more personally-invasive efforts. Cops are using cheap facial recognition tech to identify suspects and seem largely unconcerned when the software picks the wrong person out of the lineup. Entire communities are subjected to additional scrutiny thanks to flawed analytic systems that turn garbage, racist data into "predictions" about upcoming criminal activity. And this tech is being introduced to schools, turning minors with their whole lives ahead of them into minors whose future has been predetermined by an Excel spreadsheet.

This hasn't replaced anything law enforcement has already had warrantless access to, like utility records, trash pulls, pole-mounted camera footage, etc. This is in addition. To claim the only useful evidence hides in the static storage of a locked phone is bullshit. To their credit, most law enforcement agencies realize this. It's only those up top pretending this isn't the case.

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Filed Under: doj, encryption, evidence, fbi, going dark, law enforcement


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  • identicon
    Paul6b, 6 Jan 2021 @ 5:43am

    New Sheriff in town

    The Democrats will assume full control of the Federal Government this month, including all Federal law enforcement and surveillance agencies (DOJ, FBI, NSA, etc).

    What will the new Democrat leadership do about this Encryption issue, if anything?

    reply to this | link to this | view in chronology ]

    • icon
      ch'kody (profile), 6 Jan 2021 @ 6:40am

      Re: New Sheriff in town

      I'm reminded of being in a new school year. New everything. New teacher. Maybe some new classmates. After a while, things go back to normal. After we finish our year, people move on. But the same routines remain.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2021 @ 7:42am

      Re: New Sheriff in town

      Maybe put out the fire first?

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    There's something rotten in Techdirt, 6 Jan 2021 @ 8:08am

    ch'kody back for 15 and 16th comments after 7 year 2 month gap!

    Had ONE in 2013 after year gap: all the rest in 2012.

    reply to this | link to this | view in chronology ]

    • icon
      ch'kody (profile), 6 Jan 2021 @ 8:58am

      Re: ch'kody back for 15 and 16th comments after 7 year 2 month g

      Been busy parenting. Now, the kids are able to think and able to do stuff for themselves. Good to be back.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    There's something rotten in Techdirt, 6 Jan 2021 @ 8:09am

    FIRST ZOMBIE OF THE YEAR!

    By hooting this blatant astro-turfing, I had the zombies suppressed for a couple weeks, but Techdirt again desperate for comment goes back to old tricks.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 6 Jan 2021 @ 8:53am

      Re: FIRST ZOMBIE OF THE YEAR!

      No, no you did not. There is absolutely nothing suspicious about a long-dormant account posting one comment. I’m not even sure how it’s allegedly astroturfing.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 6 Jan 2021 @ 10:12am

        Re: Re: FIRST ZOMBIE OF THE YEAR!

        You see, 7-10 years ago mike was so concerned he was being exposed by OOTB and created a bunch of sockpuppet accounts to astroturf support for Techdirt's positions. Then he did nothing with them for years so they would seem like long time supporters until the exposure got to be too much and he finally started making a tepid post or two.

        Astroturfing!

        /Sarcasm

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Antibody to the Techdirt plague, 6 Jan 2021 @ 8:16am

    January 6, 2021. It's not the 1950s when only in novels, kids!

    Every time police use "high-tech" surveillance, it's as though Techdirt just woke up from last century and is SHOCKED.

    Meanwhile, never a word of objection to GOOGLE and FACEBOOK gathering every bit of information that can, never a mention that they too provide "law enforcement" with it.

    Techdirt loves surveillance capitalism but foolishly, childishly, believes it has no drawbacks for them.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 6 Jan 2021 @ 9:04am

      Re: January 6, 2021. It's not the 1950s when only in novels, kid

      Every time police use "high-tech" surveillance, it's as though Techdirt just woke up from last century and is SHOCKED.

      No. As noted, this is just another report that shows that law enforcement isn’t going dark like the Feds like to claim. It says so right in the article. The headline even says “‘Going Dark’ Is Bullshit, Says Yet Another Report Detailing All The Ways Law Enforcement Can Obtain Evidence” (emphasis added). Seriously, you couldn’t even read the headline?

      The entire tone of the article is that this is just another piece of evidence that supports what we already knew.

      Meanwhile, never a word of objection to GOOGLE and FACEBOOK gathering every bit of information that can, never a mention that they too provide "law enforcement" with it.

      Seriously, are you new here? There’s been a lot of discussion about that on this site. It doesn’t get discussed as often only because little new really happens there. If there’s a new report/incident, they cover it.

      Techdirt loves surveillance capitalism but foolishly, childishly, believes it has no drawbacks for them.

      Again, they have expressly said otherwise.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 6 Jan 2021 @ 12:15pm

    Anyone get the idea,

    That most of these agencies, have forgotten that there are TECH people out in the world that could make their Lives easier?

    In ALL of this, there is a strange fact. You need permission/warrant, to do something LEGALLY that can be taken to court.
    Illegally, there is very little restriction. as long as its not required in court.
    And this is about HOW the old system worked.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 6 Jan 2021 @ 1:40pm

    Fixed.

    We can't get any evidence! claim consecutive FBI directors, pointing to the agency's exaggerated pile of locked devices.

    Fixed it for you.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 7 Jan 2021 @ 12:16pm

      Re: Fixed.

      I love understanding and living thru the Old tech days, and watching Programmers TRY to keep their Programs LOCKED and Un-pirated.
      The Hardest program protection took 2 years to crack on a floppy disk.
      It was a very interesting trick. They gave each sector and error, then gave Each Track an error. And the raw game was in the center. The Protection check, only looked out tot he disk, randomly look at a track.sector, to see if there was an error.
      The hardest part was that you had to Find the Program(all of it) even if it was on one of those track/sectors. And you couldnt tell if you had it all. There was no encoding on the program, it just had an error check, but we couldnt read the disk to make sure until we could read EAch track/sector to make sure there wasnt any program there.

      The hard part for any of these agencies is 2 parts.
      What they did, and could do in the past, and trying to do the same NOW.
      Then thinking that Digital makes it any worse. And not needing to learn the OLD WAYS.

      reply to this | link to this | view in chronology ]


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