Going Dark Issue

Going Dark Issue

Law enforcement at all levels has the legal authority to intercept and access communications and information pursuant to court orders, but it often lacks the technical ability to carry out those orders because of a fundamental shift in communications services and technologies. This scenario is often called the “Going Dark” problem.

Law enforcement faces two distinct Going Dark challenges. The first concerns real-time court-ordered interception of data in motion, such as phone calls, e-mail, text messages, and chat sessions. The second challenge concerns “data at rest”—court-ordered access to data stored on devices, like e-mail, text messages, photos, and videos. Both real-time communications and stored data are increasingly difficult for law enforcement to obtain with a court order or warrant. This is eroding law enforcement’s ability to quickly obtain valuable information that may be used to identity and save victims, reveal evidence to convict perpetrators, or exonerate the innocent.

Make no mistake, the FBI supports strong encryption, and we know firsthand the damage that can be caused by vulnerable and insecure systems. As such, the Department of Justice, the FBI, and other law enforcement agencies are on the front lines of the fight against cyber crime. The government uses strong encryption to secure its own electronic information, and it encourages the private sector and members of the public to do the same.

However, the challenges faced by law enforcement to lawfully and quickly obtain valuable information are getting worse. The Communications Assistance for Law Enforcement Act (CALEA) was enacted in 1994 and applies only to traditional telecommunications carriers, providers of interconnected Voice over Internet Protocol (VoIP) services, and providers of broadband access services. Currently thousands of companies provide some form of communication service, and most are not required by CALEA to develop lawful intercept capabilities for law enforcement. As a result, many of today’s communication services are developed and deployed without consideration of law enforcement’s lawful intercept and evidence collection needs.

Of the Going Dark problem, Director James Comey has said, “Armed with lawful authority, we increasingly find ourselves simply unable to do that which the courts have authorized us to do, and that is to collect information being transmitted by terrorists, by criminals, by pedophiles, by bad people of all sorts.” And as for a perceived conflict between keeping people safe and protecting their privacy, “it isn’t a question of conflict,” according to Comey. “We must care deeply about protecting liberty through due process of law, while also safeguarding the citizens we serve—in every investigation.”

To help address the challenges posed by advancing communications services and technologies, the Department of Justice’s National Domestic Communications Assistance Center (NDCAC) leverages and shares the law enforcement community’s collective technical knowledge, solutions, and resources. NDCAC also works on behalf of federal, state, local, and tribal law enforcement agencies to strengthen law enforcement’s relationships with the communications industry.

Additional resources:

- Congressional testimony of Director Comey (3/1/16)
- Director Comey comments on San Bernardino matter (2/21/16)
- Congressional testimony of Director James Comey (7/8/15) 
- Congressional testimony of Director James Comey and Deputy Attorney General Sally Quillian Yate (7/8/15)
- Acting Deputy Attorney General Sally Q. Yates’ speech at the Association of State Criminal Investigative Agencies’ Spring Conference (5/4/15) 
- Congressional testimony of Executive Assistant Director Amy Hess (4/29/15)
- Director James Comey’s speech at the Brookings Institution (10/16/14)
- National Domestic Communications Assistance Center