It’s an honor to be here among so many distinguished jurists, attorneys and other leaders across the 8th Circuit.
This week’s theme – “Lawyering in the 21st Century” – is timely and important for all of us, and it is a concept that is evolving quickly. I first started working as an AUSA in the 1980s. At that time, the word “internet” was not a part of a lawyer’s vocabulary, and it certainly was not integral to how lawyers communicated, researched and practiced. Today is a new day.
The internet is ubiquitous and, like it or not, for most of us it is a necessity. As I have seen every day at the Department of Justice – in national-security briefings, reviews of case files, and meetings with the leaders of our divisions and task forces – our role as lawyers has evolved. On one hand, we have increased our level of communication with instantaneous emailing, texting and something I hear is called “tweeting.”
Yet, on the other hand, in some cases, we have decreased our level of communication with one another by putting into emails that which we would have previously discussed in a meeting.
In my role as Acting Deputy Attorney General, the volume of information involved in every issue – every question – facing the department has grown exponentially over the last several years. Technology has been key to this development not only because of the change in information flow, but more importantly, as technology evolves so do the crimes. And the department must, and has, adapted to these new threats.
Today, I’d like to briefly address three important but challenging issues faced by the Department of Justice today – national security, intellectual property and child exploitation. These issues illustrate the evolving nature of the crimes the department is combating due to technological advances.
But each of these issues also helps to illustrate how the 21st Century Department of Justice is responding to these advances.
Last year, President Obama put it best when he described – in simple but accurate terms – the national security threat that technology poses, even as it also aids in our fight against terrorism and foreign attack.
“It is the great irony of our Information Age,” the president said, that “the very technologies that empower us to create and to build also empower those who would disrupt and destroy.”
I could not agree more. Nor could the rest of the senior leadership of the Justice Department. And that’s why cyber security has become, as it must be, a priority for the department – and for the administration as a whole.
In particular, we have seen an explosion in new technologies and cyber-based communications that pose new challenges for the government. Some of these challenges are familiar.
Terrorists, criminals and spies attempt to anonymize their activity. An e-mail account can be registered to Mickey Mouse, or to any other name for that matter, but still allow for convenient and reliable communications. New encryption technologies, meanwhile, threaten to limit the effectiveness of lawful government wiretaps.
But other challenges are less familiar – and thus more daunting. The architecture of the Internet, for example, allows for remote access to critical infrastructure systems, government networks and private industry.
Cyberspace threatens to become a platform for stealing government or corporate secrets from what may be believed to be a safe haven thousands of miles away, or, even worse, for damaging our nation with dangerous cyber attacks.
These may sound like immediate problems for the defense and law enforcement communities, not lawyers – but for us, cyber security is not an abstract or distant problem. Cyber vulnerabilities create serious challenges to our ability to ensure that cyber crimes are not immune from the law.
The FBI’s cyber division has grown substantially in recent years. DOJ lawyers work closely with the FBI to address increasingly sophisticated and dangerous cyber hacking and theft.
The department also works closely with our foreign partners because, clearly, cyber threats do not recognize borders. For example, the department chairs the G-8 High Tech Crime Group, a group with more than 50 countries created to facilitate criminal investigations with law enforcement agencies abroad and to cultivate cooperation on emerging cyber-crime issues.
And the United States ratified the International Convention on Cybercrime, providing a global framework for substantive and procedural laws that will foster – and enable – greater cooperation among nations on the investigation and prosecution of cybercrime.
Of course, for all of us, these issues are not just about technology. They are about lawyers doing the hard work of practicing law and helping to steer our clients (for many of us, that’s the government) toward some particular end. This includes DOJ attorneys working with the Intelligence Community to seek court approval under the Foreign Intelligence Surveillance Act to collect intelligence through monitoring phones and email accounts.
On all national security matters, including cyber security threats, there are legal advisors spread across numerous Executive Branch agencies involved in protecting national security – including those in the Director of National Intelligence, the Central Intelligence Agency, the National Security Agency and the National Security Council at the White House.
Because attorney advisors in the Justice Department must work and collaborate effectively across federal departments and agencies, optimal decisions are reached when officials from every relevant Executive Branch agency sit down together to evaluate any potential threat and decide which of the many tools we can best use to disrupt it. It is through these meetings, not emails or texts, that decisions are made about the most serious threats facing the Nation.
The attorneys who do this work must have the ability to make decisions quickly and most of the time the work will be classified thereby limiting the ability to send or discuss this information electronically.
In other words, the 21st Century Department of Justice uses 21st Century technology to combat the crimes, but also uses traditional face-to-face meetings to help resolve some of the most difficult threats facing our Nation.
Switching gears, the steady advance of technology has also led to the increasing availability – and plummeting costs – of computing power, data storage and bandwidth. These advances have made possible a host of innovative services for the makers of creative content to distribute their works.
Digital content, whether embodied in software, books, games, movie, or music, can now be transmitted from one corner of the world to another almost instantly. And businesses that rely on intellectual property, from large entertainment conglomerates to small biotech firms, are among the fastest-growing sectors of the U.S. economy. Intellectual property now comprises a significant, and growing, share of the value of world trade.
But for every technological advance by businesses and other innovators, there is, unfortunately, a criminal who tries to misuse the new technology for his or her own illicit purposes.
That is the challenge confronting lawyers who must protect IP rights now and in the future – that criminals such as online pirates and others have been every bit as nimble in adopting new technologies as legitimate providers. They have often, in fact, been even faster.
So what is the 21st Century Department of Justice to do? We must stay ahead of the curve. We must learn how to use – and how to protect – the new creative tools and innovations before, not after, the criminals do. And we must be ready to adapt to a fast- and ever-changing legal landscape, as well.
In short, IP protection in the 21st Century demands a robust and aggressive response that both addresses emerging criminal threats and protects new innovations and creations. That is why the department and the administration has elevated IP enforcement to a top priority, as well.
Our attention to this issue recognizes that intellectual-property law enforcement is central to protecting our nation’s ability to remain at the forefront of technological advancement, business development, and job creation. And it recognizes the constant need for better tools, more efficiency, and sharper investigative techniques to stay ahead of criminals and online pirates who are keenly aware of every innovation and on constant lookout for ways in which to corrupt those technologies for illicit purpose.
To enhance, centralize and coordinate these efforts, Attorney General Holder created in February 2010 an IP Task Force, which I chair, to address the growing threat of intellectual property law enforcement – from how to work with our international counterparts more effectively to attack the global nature of intellectual property theft to ways in which we can use new enforcement tools to combat emerging IP threats.
The department also continues to rely on dedicated attorneys in the Criminal Division’s Computer Crime and Intellectual Property Section as well as specialized AUSAS located throughout the country as part of its Computer Hacking and Intellectual Property coordinator program . These attorneys are constantly learning. They are constantly adapting. And as a result, they are helping the Department of Justice detect and deter IP crimes every day.
But staying ahead of the IP curve in the 21st Century means more than just mastering new technologies. It also means taking advantage of existing resources and partnerships. The increasingly global threat of IP crimes means that we must work and partner more effectively with our law enforcement counterparts overseas. And it means we must coordinate more robustly with our federal, state and local partners.
Our response to IP crime in the 21st Century is thus comprehensive and adaptive – using new tools where appropriate and enhancing our use of existing resources where applicable. Only in this manner can we effectively, and sustainably, protect one of our country’s most valuable resources: the ingenuity of our artists, innovators and creators.
Finally, I would like to address another of the department’s top priorities – and one of the world’s vilest crimes: child exploitation. Across the United States, federal courts have seen their caseloads in this area skyrocket. Federal prosecutors have brought more than 8,000 cases of child exploitation since 2006. And the cases have increased – and evolved – every year, particularly in the realm of child pornography.
The trafficking of these horrific images, chiefly through the Internet, continues to rise – even as we bolster our investigations and prosecutions.
The department has struck back. Last week, we announced our first-ever National Strategy for Child Exploitation Prevention and Interdiction, which will bring our fight against child exploitation to new, historic levels.
With the input of our partners, from agents and attorneys to victims and advocates, our strategy provides a comprehensive assessment of the threats at hand and our ongoing efforts to combat them. More important, it outlines our goals and priorities going forward. And it details the new ways we plan to broaden our impact and build on recent progress.
Perhaps most immediately relevant to many of you is the threat assessment, which may significantly impact the work that courts do in determining whether or not to allow a defendant out on bond – and in fashioning a sentence that meets all of the requirements of 18 U.S.C. § 3553.
The assessment revealed, for example, that many offenders are producing images of the assault of a child simply in order to receive such images in trade. We now know for certain that demand drives the market – and that it leads directly to sexual assault. We know offenders gather together in chat rooms and other dark corners of the Internet not only to exchange abusive images, but also to share their prurient interests in children, methods of evading law enforcement detection, and techniques for grooming children for abuse.
We know that offenders are more sophisticated and that we must therefore find new ways to interdict their crimes. And we know that images of children are increasingly violent – and that the ages of the victims depicted are getting young every day.
And it appears that many who are caught and charged with only possessing child pornography are also likely to be child molesters. So we are trying to use scarce resources to continue some of these investigations to try to determine whether the possessor of child pornography is also a child molester.
The challenge for courts is adjudicating these unconscionable cases. For jurists and jurors alike, the evidence is often difficult to cope with. You never forget the images you see. But just as the fact finder must be provided with all relevant facts and evidence for a fair verdict to be reached, it can be difficult to balance the needs for a full display of such evidence with the legitimate concerns of victim privacy and the mental health of jurors.
But such a balance must be struck.
We have seen defense attorneys move the court to prohibit the admission of images altogether, arguing they are more prejudicial than probative. But in what other kind of case is such a motion even considered? How often do defense attorneys file motions to prevent the government from offering the bricks of cocaine, the gun used in the robbery, the tax forms evidencing evasion, the false documents or the counterfeit currency?
Although in child pornography cases, these motions are now common, the jury – in our view – has the right to see the evidence of the crime. As the statue requires, they must judge for themselves if the child or children are real and if the acts depicted are sexually explicit.
But this is just one example of many unique and unprecedented questions with which 21st Century lawyers – judges, prosecutors and defense attorneys – must grapple as they face more and more child exploitation cases. They are challenging questions – and challenging cases – but I’m confident they are challenges that can, and will, be met.
In sum, the three issues I’ve discussed today are clearly 21st Century in character. They are parasites of the Internet, living off technology, and perverting it for evil or personal gain.
But as much as we must embrace the change brought by technology, I submit that there are some things that will never change – such as the process for reaching a good decision – which sometimes requires stepping away from technology. I believe one of the greatest, if most counterintuitive and paradoxical, competencies of the 21st Century lawyer is the ability to turn off the Blackberry, shut off the monitor, silence the office phone – and take a step back before making decisions that may alter the lives of our fellow citizens – and change the fate of our world.
With the news we hear every day – and the astounding volume of cases that come before our courts and across our desks – it’s easy to become desensitized or mechanical. But when we take a step back from it all and spend time with books, the evidence, policy analyses and case law, not the Internet, and take the time to simply think carefully about the problems and issues before us, we are far more likely to see a situation from the angles that technology may blind us from – and to reach a decision consistent not necessarily with what may initially seems to be the obvious answer, but with the principled one.
I want to thank you again for your time this morning. It has been an honor to speak to you – just it has been an honor over these past six months to serve as Acting Deputy Attorney General. I wish you all the best as we endeavor together to see justice served as 21st century attorneys and jurists.