Going Dark? Amending Electronic Surveillance Laws to Keep Pace with New Communications Technology

Technology has ushered in a new era for communications, but it has also created new challenges for various countries' law enforcement agencies to investigate and prosecute crimes. Countries' statutory frameworks, such as the United States' Communications Assistance for Law Enforcement Act (CALEA), originated when communications primarily occurred over conventional phone lines. However, communications now occur over various systems and technological platforms. Due to new and emerging communications technology, such as social media networks and video chat services, a gap has emerged between law enforcement agencies' court-authorized authority to intercept electronic communications regarding criminal activity and the government's ability to actually intercept such communications. This has raised the specter, as described by the U.S. Federal Bureau of Investigation, of “Going Dark,” that certain communications about criminal activity will be beyond the reach of law enforcement agencies to investigate and prosecute. Countries' statutory frameworks, such as CALEA, may be amended in ways that address and balance the needs of law enforcement agencies to keep pace with new and emerging communications technology, with civil liberties and other interests, including cyber-security and technological innovation. Joseph Wheatley has served as a Trial Attorney in the U.S. Department of Justice’s Organized Crime and Gang Section since 2005. He graduated from the University of Pennsylvania Law School in 2005, and from Princeton University in 2001. The views expressed in this submission are his own and do not necessarily represent the views of the Department of Justice or the United States.