Feds And Cops Encountered Encryption in Only 13 Wiretaps in 2015

Are cops and feds really “going dark” when snooping on criminals because of encryption?

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Jun 30 2016, 5:30pm

Image: Peter K. Levy/Flickr

Government officials haven't stopped complaining about how the rise of encryption is becoming an ever-growing problem that's threatening to make life harder for investigators trying to catch criminals and terrorists.

But the little official data that's publicly available keeps countering that narrative. Once again, for the second straight year, the number of times state or federal wiretaps that encountered encryption decreased, though cops and feds couldn't break encryption in more cases (11) than ever, according an annual government report called Wiretap Report.

The FBI calls it the "going dark issue" and the feds have fought it publicly for years now, with the battle intensifying in the last two years. The issue was highlighted in the high-profile Apple vs FBI case, where the FBI wanted the company's help getting into the iPhone of one of the San Bernardino shooting suspects. US government officials have often alluded to cases where encryption thwarted investigations. But some of those have been debunked, or were vague enough that could not be verified.

The Wiretap Report is the only official government report that publishes data on the issue, though it only covers the interception of communications, not cases where investigators could not break into a phone like in the recent case against Apple.

In 2015, out of a total of 4,148 wiretaps, according to the new data published on Thursday, "the number of state wiretaps in which encryption was encountered decreased from 22 in 2014 to 7," and "six federal wiretaps were reported as being encrypted." In 11 of those 13 wiretaps, however, authorities could not get the data.

The number of times state or federal wiretaps that encountered encryption decreased, though cops and feds couldn't break encryption in more cases (11) than ever.

So how big of an issue encryption really is? That, unfortunately, is a little unclear.

Both FBI director James Comey, as well as Deputy Attorney General Sally Yates, argued last year that the Wiretap Report is not a good indicator.

Yates said that the Wiretap Report only reflects number of interception requests "that are sought" and not those where an investigator doesn't even bother asking for a wiretap "because the provider has asserted that an intercept solution does not exist."

"Obtaining a wiretap order in criminal investigations is extremely resource-intensive as it requires a huge investment in agent and attorney time," Yates wrote, answering questions from the the chairman of the Senate's Judiciary Committee, Sen. Chuck Grassley (R-IA). "It is not prudent for agents and prosecutors to devote resources to this task if they know in advance that the targeted communications cannot be intercepted."

That's why Comey promised the agency is working on improving data collection "to better explain" the problem with encryption when data is in motion.

It's unclear then these new, improved numbers will come out. Until then, all we have is the feds' tenuous claims, and the Wiretap Report's dwindling numbers.

UPDATE, June. 30, 5:00 p.m. ET: After this story was published, an FBI spokesperson echoed the arguments of Comey and Yates, saying the Wiretap Report numbers "should not be surprising: agents now recognize when they are likely to encounter encryption and do not waste their time on fruitless endeavors."

The spokesperson added that "a better representation" of the going dark problem is the number of devices that the Computer Analysis Response Team (CART) and Regional Computer Forensic Laboratory (RCFL), the FBI teams that help state and local police with technical requests, have been unable to unlock due to being encrypted.

"Over the 6-month period from October 1, 2015 – March 31, 2016, approximately 4,000 devices were submitted for digital forensic analysis. About 500 of those could not be unlocked," FBI spokesperson Christopher Allen said.

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