Acting Deputy Attorney General Sally Q. Yates Delivers Remarks at the Association of State Criminal Investigative Agencies Spring Conference

Remarks as prepared for delivery

Good morning.  It’s great to be here in Williamsburg as you start your spring conference.  I want to thank Ron [Sloan], for all his work as the president of the Association of State Criminal Investigative Agencies and for having me here today.  I also want to recognize my friend and colleague, Vernon Keenen, who heads the Georgia Bureau of Investigation.  As many of you know, I spent most of my professional career in Georgia and Vernon and I developed not just a wonderful working partnership, but also a real friendship that continues to this day.  As Vernon knows, some of the very best officers that we worked with at the U.S. Attorney’s office in the Northern District of Georgia were from GBI; it was and remains another example of the great relationship between federal and state law enforcement agencies across the country.  

I started as a line prosecutor in Atlanta in September of 1989 and I’ve been with the Department of Justice ever since.  During that time, I’ve worked with hundreds of agents and law enforcement personnel, on cases that ran the gamut from guns and drugs to domestic terrorism and public corruption.  I’ve been lucky to meet and befriend so many professionals who cared so deeply about doing the job well.   And I’ve always been struck by their dedication and courage:  it’s one thing for a prosecutor to draft a search warrant and present it to a judge—it’s quite another thing for an officer to execute the warrant at 6 a.m., not knowing who’s on the other side of that door.

From my experience in the field, I learned firsthand that a prosecutor is only as good as the investigators she partners with.  It doesn’t matter if the officers are state troopers, FBI agents, or local beat cops.  What matters is that they’re tough, fair, and dedicated to the dogged pursuit of justice.  The criminal justice system demands investigators willing to work hard and crack cases.  But the system depends on investigators who truly care about the right outcome.  That takes judgment and maturity—and a willingness to question everything, including one’s self.  The very best officers embody these traits.

It’s part of the reason why organizations like ASCIA are so valuable—and so necessary.  By developing best practices, sharing information and creating strong relationships between law enforcement officers across the country, you create an environment where excellent investigators can thrive.  I’m grateful for your efforts, and I hope you continue the great work you’re already doing.

Being in law enforcement isn’t easy.  For many, that’s part of the appeal.  But I know that the past few years have been particularly tough.  At times, we’ve seen the actions of a small number of officers define the law enforcement community as a whole.  I recognize how frustrating that can be, especially for folks who have dedicated their careers to hard, honest work.  But it should serve as a reminder that we all have a role to play in earning the public’s trust and that to retain that trust, we must hold all law enforcement officers to an exacting standard.  ASCIA has much to contribute on that front, in part by educating the community about the work that you, and your member organizations do.  Together, we can build bridges to communities that have traditionally felt alienated from law enforcement.

But to do this effectively, we must also develop strong relationships within law enforcement—and deepen the ties between federal, state and local organizations.   Now, as someone who worked as an AUSA, I recognize that state and local officers sometimes view the “feds” a bit warily.  But we have so much more that unites us than divides us.  The best thing we can do is develop and nurture open lines of communication, so that we’re aware of each other’s concerns and so that we’re able to respond effectively when disagreements arise.  Please know that my door is always open and that on behalf of the Department of Justice, I’m committed to making this partnership stronger than ever.

There are, of course, many topics in law enforcement that deserve discussion and I’m sure you’ll cover many of them over the next two days.  I’d like to use the remainder of my time today to discuss an issue that matters not only in the law enforcement community, but also to the public at large.  It’s a problem known as “going dark” and simply put; it is where law enforcement is unable to obtain critical information even though it has court authorization to do so. 

I’m sure that some of you are familiar with the problem, but let me give a quick overview, followed by a hypothetical to drive the point home.

Generally speaking, “going dark” refers to two closely related problems:  first, our increasing inability to obtain information as it is sent over networks, which we sometimes call “data in motion,” and secon our increasing inability to access information stored on electronic devices, which we call “data at rest.” 

Let’s say you’re pursuing a suspect in a narcotics case and you develop probable cause to believe that he’s part of a local drug ring. But you cannot figure out his role, or the role of possible co-conspirators, even though you have tried using physical surveillance, interviews and other techniques.  So you apply to a court for authorization to intercept the text messages on his phone. 

If you’re lucky, the suspect communicates using a regular text messaging service and you can tap the phone.  But in other circumstances, that’s simply not possible.  It can happen either because the communications are encrypted and can’t be decrypted, or because the company that developed the service did not include in its design the capability to comply with the court order.  When either occurs, the phone has gone dark—and your investigation is stuck.  This highlights the “data in motion” aspect of the going dark problem.

But a good investigator doesn’t give up simply because you can’t tap the phone. So let’s say you decide to search the defendant’s house.  You present your evidence to a judge, who authorizes a search warrant for any electronic devices found in the home.  When you get inside, you find a password-protected smartphone on the suspect’s bedside table.

Now, if you’re lucky, it’s an older model and the device maker will respond to a warrant that allows you to search what’s stored inside.  But if it’s a newer smartphone, there’s a good chance that’s not possible.  The phone could contain photos, videos, or other evidence of the suspect’s role in the conspiracy.  But in some ways it doesn’t matter, because the information on the phone is encrypted and effectively inaccessible.  Once again, your investigation is blocked.  This highlights the “data at rest” aspect of the “going dark” problem.

These are not merely hypothetical concerns.  As law enforcement officials, you know how electronic evidence is becoming increasingly important in every case we investigate and prosecute.  Indeed, traditional forms of evidence that we used to rely upon, like paper files or hand-written notes, are becoming more the exception than the norm.

One of the challenges we face—as federal, state and local investigators—is educating the public that the “going dark” problem is real and growing.  Some folks watch television and think that the government can get any information it wants, whenever it wants, simply by flipping a switch.  We know that’s not true.  The unauthorized disclosures of classified information over the past few years have contributed to the perception—incorrect as it may be—that the government has unlimited and unchecked surveillance power. 

Although the general public may be skeptical, criminals know our investigatory limitations and will exploit them.

How did we get here?  American citizens care deeply about privacy and rightly so.  As such, companies have been responding to a market demand for products and services that protect privacy and security of their customers.  This has generated positive innovation, like using strong encryption that has been crucial to the digital economy. 

At the same time society has a compelling interest in law enforcement being able to investigate and prosecute criminals and creating a situation where law enforcement cannot compel access to electronic information – even pursuant to a search warrant – should give all of us pause.

It wasn’t always this way.  We’ve seen a fair amount of technological change during our lifetimes.  I’ve watched letters become faxes, which became emails.  Rotaries became car phones, which became smart phones.  These innovations have transformed our lives for the better. 

But as these technologies have evolved, we’ve been forced to consider how criminals might use these new tools to their advantage.   

To make sure that we strike the proper balance between encouraging innovation and protecting the public, we’ve always accepted a few bedrock principles.  First, regardless of the technology, we’ve respected the fundamental right of people to engage in private communications, regardless of the medium.  Whether it’s instant messages, texts, or old-fashioned letters, citizens have the right to communicate with one another in private without unauthorized government surveillance.  Not simply because the constitution demands it, but because the free flow of information is vital to a thriving democracy.  

Second, we’ve accepted the core principle of judicial authorization:  that if an independent judge finds reason to believe that certain private communications contain evidence of a crime, then the government can conduct a limited search for that evidence.  For example, by having a neutral arbiter—the judge—evaluate whether the government’s evidence satisfies the appropriate standard, we’ve been able to protect the public and safeguard citizens’ constitutional rights. 

Many of our laws reflect that balance and the principle of judicial authorization.  Those laws, like the wiretap act, lay out the standards that a judge must use when deciding whether to authorize the collection of electronic evidence, including applications for wiretaps.  These procedural laws, and others, such as the Communications Assistance for Law Enforcement Act – or CALEA for short -- generally put the obligation on private companies to help us actually effectuate a judge’s lawful order. 

In many cases, these laws have served us well.  But technology moves quickly and we run the risk of getting left behind.  

What can we do?

First and foremost, we must continue to ensure that citizens’ legitimate privacy interests can be effectively secured through robust legal protections. 

Second, we must educate the public that privacy and security can continue to co-exist, and that we can use solutions that respect legitimate concerns while allowing law enforcement to keep us safe.  Some have claimed that there is no way to continue permitting law enforcement access to data without unacceptably compromising information security.  Rather than accepting this premise, we should work to identify solutions that minimize any risk they create and maximize their benefit to public safety.

There is no one-size-fits-all solution to this problem.  We will need to pursue multiple paths simultaneously and we will need to work together closely to tackle these difficult and complex issues.

I do not have the answers as I stand here today.  But I believe that we can find ways to address this challenge that minimize risk to consumer privacy and security, while still allowing law enforcement to do its job.  Law enforcement must play a critical role in this task.  Doing so will require the joint efforts of all law enforcement officials at every level, including federal and state and local officials.  It is our job to use our collective—and powerful—voice to educate others about the “going dark” problem.  I hope that you all will join me in this project.  

This is, of course, only one of many issues confronting law enforcement today.  Over the next few days, you’ll have the opportunity to discuss many more.  I hope you use the time well, and I hope we can find other areas of collaboration between federal, state, and local investigators. 

I look forward to seeing all the things that ASCIA. Accomplishes in the coming months and years.   There is much that we can do together and I’m excited about how we can strengthen the work of criminal investigators across all levels of government.

Thank you for having me here today.  With that, I’m happy to take your questions.