CLEVELAND, Ohio U.S. Attorney Justin Herdman is entering the fray on a national debate over law enforcements ability to access encrypted devices and messaging apps, trying to rebuff the sentiments of many tech companies that say such access could leave them vulnerable for exploitation by hackers.
Some experts consider his ideas problematic.
Herdman, in an op-ed published Wednesday on cleveland.com, mostly echoed statements made in recent years by Justice Department officials about the need for law enforcement and tech companies to work together so investigations dont stall. Calling on the need for public safety, he said agents inability to get into the devices hinders investigations into drug dealers, terrorists and sex traffickers.
The piece was directed not only at the public but at companies such as Facebook and Apple, which have spoken about the privacy needs of its customers and the rights they feel their users should enjoy to shield their messages.
Thus far, several tech companies have expressed an unwillingness to provide law enforcement a way to access either encrypted devices or messaging app systems such as WhatsApp and Signal. Other concerns raised involve defendants Fourth and Fifth Amendment rights.
Former American Civil Liberties Union attorney Alex Abdo, whose work at the organization involved issues surrounding tech and security, said many people in Silicon Valley argue that it is almost impossible to build a backdoor system for law enforcement that could not be accessed by hackers or, say, authoritarian governments in other countries that would seek information through their own legal systems on dissidents.
Still, Herdman said in an interview from Washington, D.C., that Im not convinced, nor is the department convinced, that theres not a technological solution to this. He also said that law enforcement accesses these devices for narrow purposes approved by a judge.
The U.S. attorney wrote in the op-ed that the companies are within their rights to offer privacy and cybersecurity to prospective customers as well they should, because these are important values.
But they shouldnt do so at the expense of public safety, Herdman continued. And these same industry professionals certainly know that warrant-proof encryption is protecting the criminals amongst us.
He took it a step farther in the interview, saying officials are committed to working with the companies but that forcing them to grant access could happen through the courts or new laws.
We cannot live in a world where pedophiles and drug traffickers and terrorists are able to communicate freely without law enforcement being able to lawfully intervene, he said.
The encryption issue was spotlighted in 2016, when the FBI sought Apples help to unlock an encrypted iPhone used by an extremist shooter who, along with another shooter, gunned down 14 people and injured 22 others in San Bernardino, California. Apple refused to help, citing privacy concerns.
The FBI sought outside help and was able to open the phone.
Herdmans op-ed was published two days after executives at Facebook wrote a letter snubbing overtures made by Attorney General William Barr to give law enforcement backdoor access to their systems. Facebook plans to enable end-to-end encryption on all of its messaging platforms, a system that locks messages so that not even the company can read them, according to The Associated Press.
Barr and other Justice Department officials have made statements directed toward tech companies to allow access. He said in a speech Tuesday that the encryption fight was one of our highest priorities and described an increasing number of horror stories about how people are dying, or being molested or whatever, but we cannot get in, the AP reported.
Herdman, in his op-ed, cited two examples from Ohio to support his argument that law enforcement needs more access.
He said agents were unable to get into the cellphone of a 25-year-old man arrested in a hotel outside Canton this summer on suspicion of trafficking a 16-year-old girl for sex. Agents have a search warrant but additional information that could build a case against the man is locked away because the phones manufacturer wont provide a way to get in the phone, the U.S. attorney said.
The result: Evil prevails and innocent children are still being victimized, Herdman wrote. First Assistant U.S. Attorney Bridget Brennan later declined to identify the man.
The other involved a wiretap that went cold when the target of an investigation, who was talking to a drug supplier in Mexico, switched to using an encrypted messaging app and the agents could not access the messages.
Brennan identified the target as Ismael Acosta, a Cleveland Heights man now serving a prison sentence of more than 15 years for trafficking drugs and money laundering following an investigation into a large operation by the Drug Enforcement Administration.
Herdman, who has been U.S. attorney since 2017, said in the interview that its very common for law enforcement to come across encryption. Such technology emerged near the end of his first stint at the U.S. Attorneys Office between 2006 and 2013, and he recalls discussions about it in meetings when he was in the offices national security unit.
Case Western Reserve University criminal law instructor Michael Benza said that having third parties, i.e. big tech companies, give access to apps or devices poses problems. If an agent gets a warrant to search a house, and they get someone else to kick in the door for them, thats unacceptable, he said.
Its not as simple as this is a bad guy, we know its a bad guy, so give us the access,'" Benza said.
Abdo, now the litigation director at the Knight First Amendment Institute at Columbia University, also said the government, even in the absence of encrypted information, has more information about people than ever before, because there are digital traces left every time someone uses a device or accesses the internet.
The existence of that information has caused some to say were living in a golden age of surveillance, he said.
To Herdman, such privacy concerns are vastly outweighed by the need for safety.
I dont think theres a really coherent argument on the tech side to not offering law enforcement access to devices and communications, he said.
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