26 Feb, 2016


mobile-phone-with-padlockBy first obtaining a court order, law enforcement has the legal authority to access communications during the course of an investigation. The police do this to obtain evidence of a crime, or in the case of terrorism to hopefully prevent a future attack. Unfortunately, in today’s world of advancing technology many of the forms of communication used by criminals and terrorists are becoming beyond the reach of law enforcement without the assistance of those who produced these technologies. Law enforcement refers to this situation as “Going Dark”.

Without the help of the private sector police are prevented from being able to identity and save victims, gather evidence to prosecute criminals, prevent terrorism and, in some cases, even exonerate persons whom have been wrongfully accused. Those reluctant to assist law enforcement with accessing these technologies argue the right to privacy, expressing concerns of potential abuses. This concern is well meaning, but not supported by the reality of the situation. The very nature of law enforcement working with the private sector has always required an unbiased 3rd party court to review the need for such an order to first ensure the existence of the necessary probable cause. If the court deems probably cause for the sought-after information does not exist then a court order will not be issued.

Even in the unlikely situation where an officer might attempt to abuse this authority there are mechanisms to remedy and deter such actions, including civil and criminal penalties. This means that anyone in law enforcement that tried to operate outside the scope of their authority by misleading a court would be subjecting themselves to lawsuits against their personal finances and face possible imprisonment. Likewise, their law enforcement agency would also be liable, which is why law enforcement supervisors and independent prosecutors also oversee efforts to obtain a court order. All things considered, the likelihood of any possible abuse is greatly outweighed by the protections in place to ensure the public’s privacy.

Finally, obtaining such court orders is not a new concept. This happens every day in the course of police investigations that require the assistance of the private sector. Whether it is a court order for phone records presented to a telephone provider or ISP information being sought from an Internet company, the private sector works regularly with law enforcement, operating under court orders to both protect civil liberties and citizens from criminal and terrorist threats. The only thing that has changed is technology. Law enforcement is simply asking for assistance when encryption prevents them from doing their job.

There needs to be an understanding of the balance that already exists between law enforcement and the public’s right to privacy. There is no conflict in this matter. The public has a right to privacy and law enforcement is duty bound to follow the process of law to protect this right. Just as important, through the private sector continuing to work with law enforcement on matters involving advanced technology, law enforcement can then also fulfill its fundamental mission of protecting the public by confronting the dangers that exist in our world today.

Originally published by John Iannarelli on LinkedIn

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