Going dark is
|“||[a] phrase used by US law enforcement (and appropriated by others) to describe the allegedly declining capabilities of law enforcement agencies to access the content (but not the metadata) of communications due to the increased use of encryption in everyday communication technologies and services. However, in reality, encryption generally will not prevent interception of communications, nor does it render communications completely void of any intelligence information; intercepting authorities will still be able to derive some information (such as a date, time, senders, size etc. — known as metadata) from the intercepted encrypted communication.||”|
As modern technology has developed, there has arguably been an evolving gap between law enforcement's investigative authorities and capabilities to carry out authorized activities. This is not a new phenomenon. The FBI, for instance, established a Going Dark initiative in an attempt to maintain law enforcement's ability to conduct electronic surveillance in a rapidly changing technology environment.
Originally, the "going dark" debate centered on law enforcement's ability to intercept real-time communications. As communications technologies evolved, so did questions about whether or how law enforcement could work within existing electronic surveillance laws to carry out court-authorized surveillance on real-time communications. The shift to new electronic forms of telephone communications in the latter part of the 20th century hindered the ability of the government to intercept voice communications, even when it had the appropriate legal process to do so. This resulted in the passage of the Communications Assistance for Law Enforcement Act (CALEA) in 1994.
Concerns over "going dark" have become two–pronged. More recent technology changes have potentially impacted law enforcement capabilities to access not only communications, but stored data. As a result, current law enforcement concerns around "going dark" now involve how, in practice, encryption of stored data, as currently implemented by technology companies may affect law enforcement investigations. Analysts have not yet seen data on whether or how encryption has affected law enforcement access to stored data or influenced the outcome of cases. In the past, Congress has requested that similar information be collected and reported.
Pub. L. No. 106-197 required the Administrative Office of the U.S. Courts to report on whether law enforcement encountered encryption in the course of carrying out wiretaps, as well as whether officials were prevented from deciphering the "plain text" of the encrypted information. While current data collection and reporting requirements on encryption relate to real-time communications, policy makers may debate the potential utility of asking law enforcement to report on encryption relating to stored data as well.
- "Overview" section: Encryption and Evolving Technology: Implications for U.S. Law Enforcement Investigations, at 9.
- Urs Grasser, Don't Panic. Making Progress on the “Going Dark” Debate (Berkman Center for the Internet & Society) (Feb. 1, 2016) (full-text).
- House Committee on the Judiciary, Subcomm. on Crime, Terrorism, and Homeland Security, Going Dark: Lawful Electronic Surveillance in the Face of New Technologies (112th Cong.) (Feb. 17, 2011).
- Senate Judiciary Committee, Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy