Opinion

Crime At The Click Of A Mouse

Donald J. Mihalek Vice President, Federal Law Enforcement Officers Association Foundation

According to the FBI the terrorist in San Bernardino used encypted methods of communication to coordinate and plan their attacks.  Encryption and “dark” areas of cyber space prevented law enforcement and intelligence from discovering what they were doing. The terror group wreaking havoc in Iraq and Syria uses the cyber world, including encryption and dark spaces of the internet to recruit, train and radicalize future terrorists. Domestically, according to the Center of Missing and Exploited Children, there are 843,200 registered sex offenders in the United States. At any one point in time, thousands of these sex offenders prowl the streets of cyber space, identities hidden behind IP addresses, disposable cell phones and social networks, and now encryption, which cell phone companies refuse to provide law enforcement access to.

The Department of Justice says 76 percent of child sex crimes victim’s first encounter with a predator took place in an online chat room. In 2012, 62,939 cases of child sexual abuse were reported to law enforcement and many were lured to their abuser with cell phone call, email or text yet some in DC are making it harder for law enforcement and intelligence agencies to track and apprehend these threats.

Since many of these crimes involve a cell phone, email address or text – it presently takes judicial action to obtain the investigative and evidentiary information from these communication platforms to find and arrest these criminals. Subpoenas, court orders and search warrants under The Electronic Crimes Privacy Act stipulate the rules with which law enforcement and intelligence can obtain electronic information. Federal, State and local agencies in conjunction with their prosecutors’ offices ensure rules are followed and thus far, individual’s privacy rights have been protected. Ask any investigator, they will tell you the process is tedious yet criminals have been identified and prosecuted – including terrorists and child predators.     

Unfortunately in Washington DC sometimes those with the biggest purse can create an issue out of electronic static that overwhelms reason. Currently, an effort is underway by a coalition of privacy groups with support from some in Congress to completely change and make more difficult law enforcement’s ability to access electronic information. The coalition argues that more privacy protections are needed to protect American’s civil rights.

This coalition of civil rights types has been supported and funded by corporations such as Google, Verizon, Yahoo and others. Ironically, these corporations have complete access to and control more Americans’ email accounts, cell phone and text records than the NSA could ever hope for, including tracking every keyword you search with. They have unfettered access to every American’s account information while law enforcement, rightfully so, must go through some type of judicial process – which takes time.      

On average, outside of “exigent” circumstances related to saving a life – which in many cases doesn’t include a missing child; it takes 2-5 days to get a subpoena and a week plus to obtain a court order or search warrant for electronic information. That does not translate to a speedy process yet the “coalition” tries to make it seem as if law enforcement can just wave a wand and have a warrant. In every case including “exigent” circumstances, which current bills in Congress seek to eliminate those exceptions, the law enforcement officer has to articulate their reasons to the prosecuting attorney and a Judge prior to any legal process being issued. In many cases, U.S. Attorney’s offices in particular have set high bars which exceed what the law says. The reason: they don’t want to lose a case – they want all “I’s” dotted and “T’s” crossed

Meanwhile at corporations like Google, which holds billions of electronic records, a law enforcement officer can’ talk to a live person. Google has a voicemail line where a law enforcement officer has to leave a message and await a return call – usually at odd hours at a later date.  

While law enforcement fights to protect the American people, Google posted second quarter 2015 revenues of $17.72 billion, and Yahoo reported first quarter earnings of $1.04 billion. Apple posted 3rd Quarter 2015 revenue of $49.6 billion with $10.7 billion as profit, and Facebook’s profits soared to $4.04 billion in the second quarter of 2015, while Verizon added 565,000 new contract wireless customers in the first quarter of 2015 with profits rising 6.9 percent to $4.22 billion.

So why is this coalition, which has gotten certain congressmen to do its behest, making it more difficult for law enforcement to obtain electronic records? Perhaps the profits are why? Handling legal requests for records is unprofitable. Since almost every crime touches an electronic platform and cell phone use has risen over 400 percent in the last decade, it takes a lot of work answering legal requests.  

In light of recent events that have shown fatal flaws in our electronic posture, we must ask ourselves who ultimately pays the price for our inability to effectively access electronic information? Americans should push back against this “coalition” and remind Congress that if they listen to those with high profits our most vulnerable may be lost in their billion dollar electric static.