WHEREAS, The Communications Assistance for Law Enforcement Act (CALEA), enacted in 1994 when the Internet was still nascent, was designed to address an identified deficiency in the ability to obtain communications content and call identifying information from the regulated telephone carriers of the time, by imposing assistance obligations on traditional telephone carriers and replacements for that technology to develop and deploy intercept capabilities, but the revolutionary expansion of communications technology over the last two decades has eroded CALEA's effectiveness; and

WHEREAS, The Federal Communications Commission (FCC) action over the past twenty years has extended CALEA coverage to certain specific replacements for traditional telephony services, such as interconnected Voice-over Internet Protocol (VoIP) service and broadband internet access, but most of the communication services offered by Internet Service Providers, such as Google, Yahoo, Facebook, remain outside the coverage of CALEA; and

WHEREAS, Criminal use of encrypted technologies and communications by Drug Trafficking Organizations (DTOs), particularly end-to-end encrypted application (app)-based communication platforms, is increasingly diminishing law enforcement investigative capabilities, has led to the loss of critical intelligence and evidence of ongoing crimes, and poses significant risk to the public safety; and

WHEREAS, commercial products and services are commonly being designed in a way that give users sole control over access to their data. Many communication providers now encrypt certain communications by default, with the key necessary to decrypt the communications solely in the hands of the end user. This applies both when the data is "in motion" over electronic networks, or "at rest" on an electronic device. As a result of the fundamental shift in communications services and technologies, criminal and national security investigators are increasingly unable to obtain needed evidence and intelligence despite having the legal authority to do so; and

WHEREAS, there is an ever widening gap between the lawful authority to intercept wire and electronic communications pursuant to court orders and the capability of communications providers to implement those orders on the new communications products. These challenges include:

     · End-to-end encryption (data-in-motion)

     · Encrypted devices (data-at-rest)

     · Lack of data retention by providers

     · Mobility (user moving from cellular networks to Wi-Fi networks, and from application to application when communicating)

     · Point of presence (communications service providers (CSP) located in foreign countries and not subject to US legal process)

     · Anonymization (inability to attribute actions of users)

     · Outdated authorities (existing statutes do not apply to many modern means of communication)

WHEREAS, any solution, legislative or otherwise, must strike a balance among the public's privacy interests, the industry's goals of competition and innovation, and the ability of law enforcement to protect the public safety. An ongoing honest and informed public debate about how best to protect liberty and security in both our laws and our technology must continue; and

WHEREAS, the drug-related crime and violence, and particularly the current heroin addiction and heroin/fentanyl overdose epidemic, are plaguing America, from major cities to rural communities is a serious public safety issue which includes unnecessary violence and ultimately impacts the Gross Domestic Product (GDP); and

WHEREAS, the Going Dark problem impacts public safety and welfare by limiting law enforcement's ability to respond to, prevent and bring to justice those responsible for the murder of overdose victims; and

WHEREAS, the Going Dark problem impacts the public safety, health, and welfare by restricting the ability to access critical information on the cellphones of overdose victims. Without access to the victims' recent contacts, communications, and location information, law enforcement is restricted in its ability to prevent additional deaths and save lives. In particular, law enforcement, first responders, health officials and emergency medical personnel are unable to identify and disrupt potential sources of supply; unable to identify and respond to locations where additional victims may be in need of critical medical response; unable to identify, notify and assist other potential victims where ever they may be; and are unable to issue public safety warnings with sufficient detail to prevent further victimization from particular batches of drugs or sources of supply; and

WHEREAS the Going Dark problem impacts the public welfare by limiting law enforcement's ability to provide critical information to victims' loved ones concerning the causes, circumstances, and information on those responsible for the victims' death, exacerbating the victims' families' grief and denying them the ability to seek redress, through criminal, civil or other means; and

RESOLVED, that the IACP recognizes the effectiveness that electronic surveillance used by federal, state, local and tribal law enforcement authorities has had on attacking the command and control structure of narcotics trafficking organizations within the United States; and be it

FURTHER RESOLVED, that the IACP strongly supports efforts to:

     · Petition the FCC to extend CALEA coverage to application providers whose communication services function as a replacement for a substantial portion of the local telephone exchange service,

     · Update the CALEA to ensure that law enforcement maintains its ability to conduct electronic surveillance by requiring telecommunication companies to communicate directly with law enforcement which will provide them with the ability to intercept those communications in a timely and cost effective manner,

     · Clarify and strengthen the mechanism to enforce the compliance of communications service providers with CALEA obligations,

     · Impose reasonable data retention obligations for transactional identifying information, similar to obligations currently required on regulated telecommunications carriers; and be it

FURTHER RESOLVED, that the IACP strongly supports efforts to enhance law enforcement technical capabilities by providing adequate funding to engage in the development and implementation of government intercept and exploitation technologies for encrypted technologies and communications; and be it

FURTHER RESOLVED, that the IACP strongly supports efforts to increase technology sharing and robust collaboration with other law enforcement agencies to identify best practices for developing solutions to encrypted technologies and communications; and be it

FURTHER RESOLVED, that the IACP strongly supports efforts by its membership to raise awareness on how this issue impacts day-to-day police work and obstructs public safety, health and welfare by preventing first responders and parents from obtaining the information necessary to save lives and prevent future deaths; and be it

FUTHER RESOLVED, that the IACP strongly supports efforts to coordinate a global all-news-agency-press day that will educate the public about the challenges of Going Dark, and being unable to obtain needed evidence in an encrypted world, similar to the Centers for Disease Control and Prevention's International Overdose Awareness Day, which also aims to raise awareness that overdose death are preventable. The global press will include specific examples of compromised public safety due to the inability to access encrypted communications and devices when investigating and responding to drug-related violence and heroin/fentanyl overdose cases.

Submitted by: Narcotics and Dangerous Drugs Committee

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