Encryption thwarting investigators as federal government taps increase

The annual US Wiretap Report is out, covering 2016, and as usual, it’s packed with intriguing tidbits.

A few key takeaways: the federal government is wiretapping more, states are wiretapping less, drug crimes remain the #1 target, encryption is becoming a somewhat bigger obstacle to investigators, and courts almost always give law enforcement what it wants.

When Congress set detailed rules for wiretapping in 1968, it also instructed the US court system to tell Congress “the number and nature of federal and state applications for orders authorizing or approving the interception of wire, oral, or electronic communications”. This report excludes intercepts governed by the Foreign Intelligence Surveillance Act of 1978: you won’t find data here about espionage or terrorism warrants. These are federal and state warrants related to violent, white-collar and organized crime – and above all, drug crime.

According to The Register:

Investigations into just drug dealing made up 61% of all wiretap requests, and that rose to 82% when multiple charges, including drugs, were counted. By comparison, the next most popular cause for wiretaps was conspiracy, which accounted for just 8%, followed by homicide at 5%.

Even so, drug-related wiretaps actually plummeted last year from 3,367 to 1,949. That correlated with an overall 41% drop in warrants requested by state law enforcement, from 2,745 to 1,617, suggesting that state authorities may be de-emphasizing the use of wiretaps in the drug war.

As the San Bernardino Sun reports, more than a third of this national shift can be traced to one county in California: Riverside, where wiretaps dropped from 640 to 106. This followed an expose by USA TODAY and The Desert Sun which raised…

…questions about the vast wiretapping coming out of Riverside County, which, in 2014, entailed the interception of 2m calls, texts and other forms of communication among 44,000 people… [most] approved by a single judge – Judge Helios Hernandez.

Since then, a new local district attorney has taken greater responsibility for personally reviewing wiretap requests, demanding that they “have a clearer connection to the county.” Meanwhile, the US Drug Enforcement Agency “ordered its agents to check in with federal prosecutors before pursuing wiretaps”.

Riverside’s case points to vast disparities in the numbers of wiretaps authorized in different US jurisdictions. According to an official report summary:

Six states (California, New York, Nevada, New Jersey, Colorado, and Florida) accounted for 82% of all state wiretap applications. California alone accounted for 35%.

A more detailed analysis by the Electronic Frontier Federation found that California investigators captured 7.8m communications from 181,000 people at a cost of nearly $30m. Of those, 19% were considered incriminating.

Only two of 3,170 federal and state wiretap requests were turned down by courts last year – but that’s up from a whopping zero in 2015. (In the past 11 years, only nine warrant requests have been turned down.)

Of course, a court’s rejection isn’t the only way to thwart law enforcement. For years, authorities have loudly complained that encryption would prevent access to crucial information for prosecuting dangerous offenders. But the actual data seemed to raise serious questions about this argument. In 2015, for example, the number of wiretaps in which encryption was encountered actually dropped from 22 to just seven.

This year, however, that number spiked to 57, and investigators couldn’t overcome encryption in 48 of these cases. While, even in 2016, encryption interfered with fewer than 2% of wiretaps – its wider availability and awareness might finally be having an impact.

With or without encryption, wiretapping got a lot more expensive in 2016, averaging $74,949 per tap, up 78% from 2015. In the past, wiretapping’s high cost has been viewed as a key reason for its disproportionate use in drug cases. As ACLU lead technologist Christopher Soghoian told Wired:

When agencies bust a drug dealer and get $5m and a kilo of coke, they keep the money. In many ways, the drug cases subsidize the surveillance technology.

When you combine those incentives with the Trump-era Justice Department re-emphasis on fierce enforcement of even lower-level drug offenses, next year’s numbers could prove even more interesting than usual.