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Date: April 19, 2024 Fri
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1 results foundAuthor: Carter, William A. Title: Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge Summary: Executive Summary The growth of digital technologies and the rise of mobile computing over the past decade have created new opportunities and new challenges for law enforcement. On one hand, the proliferation of digital communications, digital storage devices, and ubiquitous connectivity has made more information available than ever before on the movements, conversations, and behavior of people. On the other hand, rapidly changing technologies, shifts in terms of who controls the data, adoption of sophisticated anonymity and obfuscation tools, and jurisdictional uncertainty create new and critical challenges for the detection, surveillance, and attribution of criminal activity. In fact, survey findings indicate that law enforcement officials across federal, state, and local entities encounter difficulties in effectively accessing, analyzing, and utilizing digital evidence in over one-third of their cases that involve digital evidence - a problem that is likely to grow over time absent national attention to this problem. The purpose of this report is to focus attention on a range of too-often neglected challenges and opportunities faced by law enforcement as they seek to access and use digital evidence in their cases. Recently, most of the discussions have focused on encryption: to what extent, and in what circumstances, if any, should one be compelled to facilitate access to encrypted communications or otherwise inaccessible devices? But the obstacles posed by encryption are just one aspect of the challenge in accessing digital evidence, albeit an important one. In many investigations, a range of data is potentially accessible to law enforcement pursuant to lawful means. For a variety of reasons, however, law enforcement officials often face significant obstacles in being able to access, decipher, or otherwise use that data, even when they have the legal authority to do so. Our survey of federal, state, and local law enforcement officials suggests that challenges in accessing data from service providers - much of which is not encrypted - is the biggest problem that they currently face in terms of their ability to use digital evidence in their cases. Specifically, the inability to effectively identify which service providers have access to relevant data was ranked as the number-one obstacle in being able to effectively use digital evidence in particular cases. Difficulties in obtaining sought-after data from these providers was ranked as a close second. These challenges ranked significantly higher than any other challenges - including challenges associated with accessing data from devices or interpreting the data that has been obtained. This is an issue that has received relatively little attention and resources, and certainly not enough compared to the need. The sole federal entity with an explicit mission to facilitate more efficient cooperation between law enforcement and industry - the National Domestic Communications Assistance Center (NDCAC) - has a budget of $11.4 million, spread among several different programs designed to distribute knowledge about service providers policies and products, develop and share technical tools, and train law enforcement on new services and technologies, among other initiatives. Another important digital evidence training center - the National Computer Forensic Institute, run by the Secret Service - has to fight each year for adequate appropriations. This year it was awarded $18.9 million, enough for it to train approximately 1,200 students. If fully funded, it could train over 3,000 students per year. An array of federal and state training centers, crime labs, and other efforts have been developed to help fill the gaps, but they are able to fill only a fraction of the need. Meanwhile, there is no central entity responsible for monitoring these efforts, taking stock of the demand, and filling the gaps. Nor is there any central entity responsible for the range of other, related policy concerns that have emerged and will undoubtedly continue to do so. The good news is that these are problems that can be solved, or at the very least much better managed than they are now. This will require a national commitment, adequate resourcing, and a shift in policy. The costs are moderate and the payoffs likely large. To fill these needs, this report calls for a new National Digital Evidence Policy, to be spearheaded by a National Digital Evidence Office that will have the responsibility for overseeing and coordinating the many efforts to fill the gaps. This office should, among other things, work with federal, state, and local law enforcement to track trends and challenges, and work with the other existing entities and individuals focused on these issues to improve law enforcement access to digital evidence, consistent with civil liberties. It should, for example, facilitate improved cooperation with service providers and help disseminate knowledge and analytical tools that can assist law enforcement in deciphering data that has been disclosed. And it should promote greater transparency about the nation's digital evidence policies and programs, ensure that new initiatives are being conducted in a manner consistent with privacy and civil liberties, and make recommendations with respect to new legal authorities and policy changes that are needed or being pursued. The report further calls for the authorization and adequate resourcing of NDCAC or an equivalent entity to serve as a training and technical support center within this new office. Building on NDCAC's current mission, this support center would conduct and develop both in-person and online trainings; collect and disseminate knowledge about provider policies and products; educate law enforcement about how to submit lawful and appropriately tailored requests for data; develop and maintain technical tools for analyzing lawfully obtained digital evidence; and disseminate these tools to appropriately trained law enforcement personnel around the country. Put simply, the current model - pursuant to which each and every office is largely expected to develop and maintain its own expertise - is not sustainable. Even with an extraordinary increase in funding and training, it is not practical or possible for every one of the thousands of federal, state, and local law enforcement agencies across the country to have, within their own department, adequate access to all of the resources and expertise needed. In fact, more than half of those surveyed stated that they lacked sufficient internal resources to handle digital evidence - a problem that is likely to grow as more and more information becomes digitalized. It is possible, however, to effectively train agents and other relevant officials as to when expert advice or technical assistance is needed and where to go to seek it - so long as the training and expert assistance is widely available. In support of these efforts, the report also calls for the creation of an expert advisory board, comprised of experts from law enforcement, industry, and members of civil society, to advise the National Digital Evidence Office in a consultative role. This will facilitate better policies with broad multi-stakeholder support, foster the kinds of conversations and interactions needed to build trust (if not agreement) between parties, ensure a full range of perspectives are considered, and provide a venue for providers and other outside voices to raise concerns and/or push for policy changes. Importantly, any workable solution will require renewed efforts by both law enforcement and the private companies that manage and hold data of interest. This report thus calls on tech companies that manage, store, and have access to data to do more as well. Specifically, the tech companies should commit to maintaining up-to-date law enforcement guidance, and better educating law enforcement on how their systems work and the kinds of data available, so as to avoid situations in which law enforcement has to guess what to ask for. This will in turn facilitate the submission of better and more tailored data requests from law enforcement, thereby eliminating a major source of concern on both sides of the process. The report further calls on providers to maintain, and, if applicable, develop, online mechanisms through which law enforcement can make lawful requests for data; to commit to fast response times for emergency requests; and to ensure that there is a human being for law enforcement to speak with in the event of emergency. Providers should also commit to continued transparency about the nature and volume of requests, to challenge what they perceive to be overbroad or unlawful demands for data that they might receive, and to report trends of concern to the National Digital Evidence Office, via input to the expert advisory board or otherwise. None of this is meant to replace the excellent work already underway in parts of the Department of Justice, across federal and district attorneys' offices, at federal and state crime labs, and in various other centers of excellence around the country. Nor is it meant to displace the efforts already underway by providers that have developed online portals to facilitate law enforcement access, make guides available to law enforcement, provide trainings, and engage in transparency reporting regarding law enforcement requests for data. But both survey results and interviews suggest that there is more to be done. A National Digital Evidence Office would build on, elevate the prominence of, and ensure adequate resourcing for the successful initiatives already underway, and also help to ensure that training and technical assistance is provided not just to those that already receive it, but across the many federal, state, and local offices where the need arises. Continued and increased engagement by tech companies would help ensure that law enforcement knows where to go to request particular data, the range of data available, and how to appropriately tailor their requests. Moreover, there is a clear need for best practices and industry standards that new entrants to the market and smaller-scale providers can adopt as well. Some of these steps will take longer to achieve. It will, no doubt, take some time and effort to authorize and set up a new National Digital Evidence Office. But there are a number of steps that can and should be taken immediately. The Department of Justice can and should set up an internal national digital evidence coordinating body to fill the important policy and oversight needs. Congress can and should adequately resource NDCAC to serve the training and technical roles that already fall within its mission. The many excellent training centers that already exist should also be fully funded and should expand their mission to reach a wider set of students and address a wider set of issues. Providers can and should also take voluntary steps to better facilitate access and tailored requests, consistent with the law and the need to protect privacy and civil liberties. The remainder of the report draws on survey results and a broad range of interviews to provide a detailed accounting and analysis of the four key areas of this report's focus: resource constraints, training programs, cooperation with service providers, and related legal and policy issues. Part II provides a detailed set of recommendations; part III provides conclusions. Details: Washington, DC: Center for Strategic and International Studies, 2018. 38p. Source: Internet Resource: Accessed January 16, 2019 at: https://www.csis.org/analysis/low-hanging-fruit-evidence-based-solutions-digital-evidence-challenge Year: 2018 Country: United States URL: https://csis-prod.s3.amazonaws.com/s3fs-public/publication/180724_Carter_Digital_Evidence_FINAL.pdf?IwEUbeNl2632hDj.KIuMqJ_x0RBR_HI4 Shelf Number: 154224 Keywords: Cell PhonesDigital CommunicationsDigital EvidenceDigital TechnologiesEncryptionLaw EnforcementSmartphones |