- The Washington Times - Tuesday, May 8, 2018

Congressional action may be required to resolve the “going dark” dilemma posed by law enforcement’s growing inability to easily access digital evidence from encrypted devices, Attorney General Jeff Sessions said Monday.

Speaking at a law enforcement conference in Scottsdale, Arizona, Mr. Sessions suggested that federal legislators could be the key to curbing the “critical” encryption problem that has caused authorities to amass thousands of legally seized cellphones and other mobile devices allegedly incapable of being accessed by investigators.

“Last year, the FBI was unable to access investigation-related content on more than 7,700 devices — even though they had the legal authority to do so. Each of those devices was tied to a threat to the American people,” Mr. Sessions told attendees at the Association of State Criminal Investigative Agencies Spring Conference, according to a copy of his prepared remarks.

“That’s why we are working with stakeholders in the private sector, in law enforcement and in Congress to find a solution to this problem. Ultimately, we may need Congress to take action on this issue,” Mr. Sessions added.

Tech titans Apple and Google began selling cellphones in 2014 that encrypt user data by default, and the FBI lawfully seized 7,775 mobile devices last year that were encrypted in a manner that made their contents inaccessible to investigators, FBI Director Christopher Wray revealed in January.

“It keeps us from getting electronic evidence even when we have a warrant based on probable cause signed by a federal judge. You can’t open these phones,” Mr. Sessions said.

“If you have a warrant to open somebody’s safe and they won’t open it, you can blow it open. You can go into the trunk of their car by force if need be, or the glove compartment, in a desk or a filing cabinet,” he said. “That’s always been the law since, I guess, the founding of the American republic. But this idea that you got a phone that somehow is locked up and nobody, even a judge can’t access the information, I think it threatens our ability to be effective.”

Criminal suspects are less likely to plead guilty if investigators are unable to access digital evidence save on their cell phones, Mr. Sessions added.

“One of my theories is that good law enforcement is moving cases, and you can’t move cases to get to the next case if everybody goes to trial.You need some guilty pleas. Guilty pleas are good for the soul. But it’s also good for the criminal justice systems,” he said.

Mr. Session’s next in command, Deputy Attorney General Rod Rosenstein, similarly suggested a legislative approach to encryption during an address last August.

“I hope that technology companies will work with us to stop criminals from defeating law enforcement. Otherwise, legislation may be necessary,” Mr. Rosenstein said at the time.

More recently, the Senate Judiciary Committee met last month with tech industry lobbyists to discuss introducing a potential bill targeting encryption, Politico reported at the time.

Tech companies including Apple and Google has previously opposed efforts to weaken product encryption because of the implications on user security and privacy.

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