Statistics Collection Tool - Helping Tell Law Enforcement's Story of Going Dark.

• Author: Bunn, Nelson O., Jr.

As MEMBERS of the law enforcement community, we know what to takes to make a case: evidence.

Going Dark is about law enforcement's lack of access to evidence--whether it is on devices, "evidence at rest" or transmitted across communications networks, "evidence in motion." Complicating law enforcement's ability to collect evidence is that a growing portion of the evidence necessary to prosecute a case exists only in the digital world. In a nutshell, as law enforcement is increasingly hampered in its ability to collect evidence, because of advancing communications services and technologies, it is more difficult to make that case before a judge or to convince a jury.

Law enforcement is often called upon to describe the nature and scope of the impact of advanced communications technologies. However, for policymakers and legislators Going Dark is not a meaningful problem because of their detachment from the issue. The question most often posed by policymakers and legislators is--how does this affect your ability to investigate cases? To provide the answers that will resonate with those policy makers, the law enforcement community must have persuasive answers.

Several individual agencies, prosecutor offices, and law enforcement associations, in conjunction with the National Domestic Communications Assistance Center (NDCAC), have developed a Statistics Collection Tool to better quantify the full impact of Going Dark on investigations and cases. The statistics and examples collected by the tool will be shared with the law enforcement community to be used in discussions with policymakers and legislators about the loss of access to digital evidence.Those discussions are critically important as the crisis law enforcement faces with digital evidence require a legislative solution to address them in their entirety. Put simply, law enforcement must continue the Going Dark conversation and advocate for access to evidence commensurate with the authority it has been granted under law.

Technological barriers the Statistical Collection Tool was designed to capture include: warrant-proof encrypted communications apps; encrypted smart-phones and other devices; and non-compliant providers that either have no technical means to assist law enforcement or whose processes result in significant...