Cleveland.com Op-Ed: Child predators must not be able to hide behind warrant-proof encryption

On a weekend night this past summer, in a hotel just outside of Canton, Ohio, a suspect was arrested for sex trafficking a 16-year-old girl. The suspect, a 25-year-old man, was responsible for transporting the trafficking victim to paid sexual encounters in response to online advertisements. In his possession at the time of his arrest was a cellular telephone. The day after his arrest, the suspect was overheard speaking to another person on a jail telephone: “If they get in my [cell] phone, I’m doing time .... If they get in my phone, I’m doing time for other [expletive].”

A few months after this encounter, law enforcement still has not been able to get into this suspect’s phone. After a presentation of facts establishing probable cause that a crime had been committed, and that evidence relating to the crime was contained within that cellphone, a federal judge approved a warrant authorizing investigators to search that cellphone. The names of other trafficking victims, the contact information for additional sexual predators, the other criminal activity alluded to by the suspect – none of this information has been obtained by law enforcement.

The reason: The suspect’s cellphone is encrypted and the manufacturer has refused to provide a technical means for investigators to act upon the lawfully obtained search warrant. The result: Evil prevails and innocent children are still being victimized.

The Fourth Amendment of the U.S. Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” Two hundred and thirty years of jurisprudence have established that this right is not unlimited, and it’s obvious why this must be so. If one of the core obligations of government to the people is to ensure domestic tranquility, then by necessity the government must be able to reach the otherwise private areas of a home or other location when it can show a connection to criminal activity. And in 2019, this principle extends to the modern equivalent of “papers” (documents stored on the cloud, for example) and “effects” (nothing if not a cellphone in the current vernacular).

Our law and Constitution are clear, though. Before a search, the government must show probable cause to a neutral judge for a warrant allowing access to someone’s home, office, vehicle, email account, or cellphone. Modern statutes have added even more protections before law enforcement officers can secure the real-time interception of electronic communications through “wiretaps.”

The end-to-end encryption of communications through a variety of common applications is increasingly hampering law enforcement’s ability to disrupt criminal activity that threatens public safety.

No crime has killed more people in Ohio over the past decade than narcotics trafficking. Mexican cartels are the primary supplier of Ohio’s heroin, cocaine, methamphetamine, and, increasingly, powerful synthetic opioids like fentanyl and its deadly analogues.

In this area of enforcement, the problem posed by warrant-proof encryption has significantly restricted law enforcement’s investigations into the drug trade.

In 2016, a wiretap target in Ohio was in direct communication with a narcotics supplier in northern Mexico. The wiretap went cold, though, when the Mexican supplier and the Ohio target switched their communications to an end-to-end encrypted communication app. The service provider was not willing to give law enforcement a technical method of access to the encrypted communications – despite a court order authorizing investigators’ access – and valuable information, as well as the possibility of interdicting a large shipment of dangerous narcotics, was lost.

The problem presented by warrant-proof encryption is obvious. Our Constitution promises that we can be secure in our houses, papers, and effects, but not immune from lawful process directed at stopping sex traffickers, child predators, drug traffickers, and terrorists.

Service providers, device manufacturers, and application developers are within their rights to offer privacy and cybersecurity to prospective customers – as well they should, because these are important values. But they shouldn’t do so at the expense of public safety. And these same industry professionals certainly know that warrant-proof encryption is protecting the criminals amongst us.

As we have seen with the advent of any new technology, the sensible balance that our Constitution strikes between protection of privacy and the legitimate government interest in protecting the public must be maintained.

Criminals already operate in the shadows, where none but other criminals and committed law enforcement professionals dare to venture. If end-to-end encrypted communications and devices continue to remain entirely out of reach for law enforcement, using lawfully obtained and constitutionally valid search warrants, then we are gifting criminals something they have never had before: a place with no laws, no limits, and no scrutiny. Such a world has already arrived, and that gift to criminals has been made at the expense of our children, friends, and neighbors.