Earlier this month, a shackled man stood before a judge in the Southern District of Texas and was sentenced to 60 years in federal prison. The judge was sure to note that no sentence would have been long enough given the utterly depraved nature of the crimes committed: The man had produced images of himself abusing toddlers on multiple occasions.
Every year and across the country, sexual predators are brought to justice thanks to the National Center for Missing and Exploited Children. In 2018, the non-profit’s CyberTipline received more than 18 million reports, containing in excess of 23 million images and 22 million videos. It was in fact a report to the CyberTipline that spurred the investigation into the man mentioned above.
In March, NCMEC, acting upon a tip, notified law-enforcement officials in Corpus Christi that the man had uploaded child pornography onto a popular social-media platform. After the initial investigation, police identified a suspect and applied to a judge for a search warrant, which was granted. Police found hundreds of images and videos of child pornography, including the images and videos the defendant produced himself.
Law enforcement and prosecutors never would have known about the images and videos without that tip. And without that tip, there likely would not have been probable cause for a judge to sign a warrant to search for the images and videos.
Terrifyingly, sexual predators and other criminals who operate online can now act virtually with impunity, because “end-to-end encryption” has rendered search warrants useless. That’s because this type of encryption — more aptly described as “warrant-proof encryption” — is so impenetrable it can only be decrypted by the end user or customer.
Warrant-proof encryption in turn provides a lawless space, one in which criminals, terrorists and other bad actors can exploit society’s most vulnerable individuals for nefarious ends.
And social media platforms and tech companies are, frustratingly, refusing to develop tools that would allow law enforcement to access electronic evidence, even when investigators have secured a warrant or court order.
As recently as Dec. 10, the Senate Judiciary Committee held a hearing on this vital issue.
A bipartisan group of senators expressed outrage at the tech industry’s persistent refusal to productively respond to public concerns about — and the perils created by — warrant-proof encryption. As our own Senator John Cornyn said, “I don’t believe any company ought to be able to unilaterally decide whether to cooperate with law enforcement or not,” adding, “It’s up to a court ultimately, and we, being a nation of laws, we need to follow — everybody needs to follow — lawful court orders.”
Warrant-proof encryption is a serious challenge to rule of law and the American way of life.
It significantly impairs, if not entirely prevents, investigations involving violent crime, drug trafficking, child exploitation, cybercrime and domestic and international terrorism. Cases simply can’t be built without evidence, and cases are needed to prosecute threats to public safety and national security.
We should be even more worried because warrant-proof encryption is rapidly spreading. Another major platform is planning to roll out this type of encryption for its messaging app in the coming months. If that happens, NCMEC projects that only 5 percent of existing child pornography will remain discoverable and, thus, reportable. As for the social-media platform itself, it would by default potentially facilitate the largest trafficking of child pornography in the world.
Let’s be very clear about something else: Law enforcement does not desire unrestricted access to private digital communications.
Nor does it seek a hidden back door. Rather, it merely wants the existence of a transparent front door that can be opened, when appropriate and for a specific purpose, with a legally obtained court order.
As technology continues to advance, and criminals of all stripes continue to take their efforts online, we — as a self-governing people who recognize that justice and liberty depend upon the rule of law — must keep pace. Stakeholders are at the table waiting to start a productive discussion about solutions. Tech companies must now decide whether to join and be a force for good.
Ryan Patrick is the U.S. Attorney for the Southern District of Texas.