New Report Shows Limited Resources and Digital Illiteracy Are Law Enforcement’s Problem, Not Encryption

Today, the Center for Strategic and International Studies (CSIS) launched a report titled “Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge.” In this report, authors Jennifer Daskal and William Carter present the results of their survey of federal, state, and local law enforcement officials on their biggest challenges to obtaining, interpreting, and using digital evidence. The conclusions of that survey were clear: digital illiteracy and a lack of resources pose obstacles to law enforcement that are far greater than those posed by encryption.

In response to the authors’ survey, “only 58 percent of respondents felt their department has access to the resources, either internally or externally, needed to meet their digital evidence needs. The problems are particularly acute among local law enforcement. Just 45 percent of local law enforcement has…access to adequate digital evidence resources.”

In breaking down the findings of the survey, the authors note that “the inability to effectively identify which service providers have access to relevant data was ranked as the number-one obstacle…Difficulties in obtaining sought-after data from these providers was ranked as a close second. These challenges ranked significantly higher than any other challenges—including challenges associated with accessing data from devices.”

This report makes clear that the Department of Justice (DOJ) and FBI’s fixation on the so-called “going dark” problem and encryption backdoors has been misplaced. Instead of continuing their dangerous push to weaken encryption, the DOJ and FBI should focus on ensuring that law enforcement are trained and equipped with the skills and tools they need to access the significant sources of data that are already available in investigations.

The authors recommend a slate of actions for Congress; federal, state, and local law enforcement; judges; and companies to take. Those actions include coordinating the activities and increasing the capacity of federal entities that provide training, assistance, and technical expertise to law enforcement and judges, and increasing technology companies’ capacity and mechanisms for helping law enforcement.

These recommendations echo the sentiment of Kevin Bankston, Director of New America’s Open Technology Institute, when he remarked to the National Academy of Sciences’ workshop on encryption that “the United States can either invest hundreds of millions of dollars to update law enforcement’s investigative capabilities for the 21st century or the economy can face a loss of billions of dollars if exceptional access is mandated for U.S. products.”

The following statement can be attributed to Robyn Greene, Senior Policy Counsel and Government Affairs Lead, New America’s Open Technology Institute:

"This report makes very clear that a severe lack of technical expertise and resources at all levels of government is a much greater problem for the DOJ and FBI than encryption. This is unsurprising, given that when the FBI attempted to provide metrics last year to illustrate the severity of the “going dark” problem, they overstated the number of encrypted devices they couldn’t unlock by around 550%. At this point, DOJ and FBI’s fixation on encryption backdoors isn’t just dangerous—it’s inexplicable."