Government Affairs Blog

August 14, 2018


The Australian government recently announced that it will soon introduce legislation to facilitate lawful surveillance of encrypted communications. How will the Australian law work, and what are the implications for the communications industry, privacy, and public safety?

How encryption frustrates lawful surveillance

Terrorists and criminals commonly use communications with strong encryption, which is extremely difficult if not impossible for law enforcement to crack.  Instant messaging services such as Apple’s iMessage and Facebook’s WhatsApp pose especially difficult barriers to lawful surveillance because they are delivered “over the top” and encrypted “end-to-end.”  An over-the-top service travels over the public internet but cannot be decrypted by the service providers. End-to-end encryption means there is no point where the communication must be decrypted for inter-network transport, such as when a VoIP call interconnects to the public switched telephone network.

For years American law enforcement has complained that its investigators are “going dark,” largely due to the inability to decipher encrypted suspect communications.  The CALEA lawful surveillance statute ameliorates the encryption problem somewhat. It states that when a service provider applies encryption it must undo the message-scrambling for purposes of lawful surveillance. But the statute was never updated to reach services such as iMessage and WhatsAp because it governs only “telecommunications carriers,” not device manufacturers such as Apple, social media networks such as Facebook, or over-the-top application providers.  

Australia’s anticipated approach to solve the encryption problem

Australian law enforcement has not explained its encryption proposal in any detail.  They deny any intention of mandating an encryption key “escrow” methodology. The escrow approach would entrust encryption keys to the custody of a neutral entity, which would disclose the keys to law enforcement as needed for investigations upon service of due process.  Past proposals of this kind were crushed by industry and the public. They feared the establishment of an escrow system would create a “backdoor” path of decryption that would weaken security because hackers would develop the trickery to obtain the keys.

The Australian government hinted that its approach to encryption would resemble that of Great Britain’s Investigatory Powers Act.  Although the IPA is currently undergoing revision, this much is known. The draft provision on encryption would require a covered party to decrypt any encryption that the entity itself provides, and the clause would apply to all types of communications entities, including device makers, social media sites, and over-the-top application providers. Most likely, the law would require companies like Apple to collect a suspect’s messages when they are decrypted for routing purposes at the applicable application server.  Then the company would deliver the plain-text versions of the messages to law enforcement.

For encrypted data stored on handsets, computers, laptops and tablets, the device makers could likewise decrypt a suspect’s content.  Apple once performed this assistance for US law enforcement when presented with suspect iPhones, even though that capability was not required by any lawful surveillance mandate. But after the 2013 mass-surveillance scandal sparked by NSA contractor Ed Snowden, Apple and numerous other communications competitors quickly tightened their security and privacy protocols.

Opposition to Australia’s approach to encryption

Although no encryption bill has been submitted to the Australian legislature, a coalition of industry and privacy groups has already denounced it.  These advocates believe any solution to the encryption problem would pose security risks. For example, they say communication users may lose trust in their service providers and thus resort to obsolete security products, which could be vulnerable to botnets or malware.  They urged the government to strengthen digital security, not adopt legislation to bypass it.

The pro-encryption alliance recognizes the need for government investigators to conduct lawful surveillance.  But the group has not tabled a proposal to meet that goal. Instead, they argue that the integrity of strong encryption must be preserved to protect the security of essential services such as communications, banking, and health care.

The potential implications for industry, consumers and law enforcement

There may be no solution to the encryption problem that satisfies all interested parties.  However, the Australian initiative may yield a workable compromise. Much depends on the extent of the burden imposed on the communications industry. The law should ask device vendors and specific commercial entities only for encryption assistance that is technically feasible. Moreover, it should also avoid hampering commercial services. Finally, it should be fairly reimbursed by government. Under these circumstances, industry may accept the new burden.  

Even if a broader range of industry players assumes responsibility for lawful decryption, the cooperation may not be welcomed by privacy-minded consumers.  They recognize the critical importance of encryption in their daily lives, and news reports of devastating data breaches only harden their resolve. Still, these users may prefer to see the decryption role assigned to their own chosen service providers and device makers rather than law enforcement.

Australia’s expected legal reform would reportedly not let law enforcement decode encrypted suspect communications.  But it would apparently do the next-best thing by giving them access to suspect communications in plain-text form.

When a reliable bypass for encryption is available for law enforcement agents in Australia or Great Britain, the capability may benefit their counterparts in other countries.  For example, once Apple upgrades its iMessage servers to capture and deliver plain-text messages, a court in Canada may validly order Apple to activate the technology in support of a Canadian investigation.

The implications are greatest for nations like the US, where device makers, social media networks, and over-the-top application providers are exempt from CALEA.  In the US, regardless of whether a communication provider is covered by CALEA, if it installs a capability to deliver suspect communications in plain text, a court may order the provider to enlist the capability for an investigation.  This means American law enforcement may overcome the “going-dark” problem without having to wait for Congress to update CALEA. For purposes of American public safety, that would be a godsend.

June 29, 2018


The US Supreme Court recently issued a ruling that curbs law enforcement agency (LEA) access to subscriber location records stored by wireless communication service providers (CSPs).  In Carpenter v. US, the Court held that an LEA must show a judge “probable cause,” not just “specific and articulable facts,” before asking a CSP to disclose a suspect’s historic cell site location information (CSLI).  Probable cause is the nation’s highest level of due process.  The standard requires an LEA to make a factual demonstration that the suspect is probably engaged in a crime. 

In the short run, the Supreme Court pronouncement may well reduce the number of court orders served on CSPs to produce CSLI.  But what about the long run? Will the courts ultimately strengthen privacy protection for other forms of electronic communication?

Real-time location is arguably just as private as historic location

In Carpenter, the Court articulated strong reasons to elevate the due process standard governing CSLI.  The majority opinion said CSLI provides “an all-encompassing record of the [cell phone] holder’s whereabouts.”  Detailing the threat to privacy, the opinion spoke of “the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection ….” 

Actually, a court may authorize an LEA to investigate a suspect’s whereabouts in two ways.  One approach is to collect the person’s CSLI, as described in the Carpenter case.  The other option is to monitor the person’s movements in real-time.  In the real time scenario, the court issues a “pen/trap” order or “full-content” order, and the CSP activates a technical solution in its network that discloses the suspect’s cell phone location (at the start and end of each suspect call) to the LEA in real-time for a period of 30 or 60 days. 

The Court justified its judicial elevation of CSLI in part by reasoning that an investigation of CSLI is more intrusive than the real-time monitoring of a suspect’s vehicle using a vehicle tracking device.  In particular, the court emphasized that CSLI traces the location of the suspect, not just the suspect’s car.  However, the Court did not compare CSLI with the kind of location gleaned from pen/trap orders and full-content orders.  Like CSLI monitoring, real-time cell phone location monitoring traces an individual’s movements over time.  Both forms of location monitoring produce “an all-encompassing record of the [cell phone] holder’s whereabouts.”  Both are “deeply revealing” in “depth, breadth, and comprehensive reach.” And both are “inescapable and automatic” in the nature of their collection.

Based on the above, it seems inevitable that US courts will ultimately accord the same top-level “probable cause” protection for real-time cell phone location monitoring that Carpenter recognized for historic cell phone location monitoring.  Such a privacy-expanding outcome would make it more difficult for LEAs to obtain court orders for the real-time monitoring technique. 

Communication transactional records are arguably just as private as historic location records

Wireless location is not the only type of footprint left by suspects on communications networks.  The individuals also accumulate transactional records, known in the voice communication world as call data records, or “CDRs.”  Think of the telephone calling information we see on our monthly phone bills.  Under current law, an LEA may collect CDRs with a court order or self-generated subpoena.  The applicable due process standard is the lowest one.  Specifically, the LEA must only confirm that the desired records are “relevant” to a criminal investigation. 

CDRs are surprisingly informative.  When an investigator discovers who a suspect called and who called the suspect, along with the related times and dates over several months or a year, he or she can run the data though an analytics program that makes accurate inferences about the suspect’s private life.  The algorithms expose calling patterns that distinguish the boss of the suspected crime ring from the lieutenants and henchmen.  Also detectable are clues about the nature of the criminal activity itself, such as drug trafficking, auto theft, or burglary. The automation can even help predict when and where the bad guys will strike next.

Notice that CDRs are deeply revealing in their depth and breadth, and comprehensive in their reach.  They are also inescapable and automatic in the nature of their collection. Moreover, the records are stored by all types of communication providers, not just wireless carriers.

For these reasons, one could say subscribers deserve the same top-level probable cause protection for CDRs that Carpenter delivered for wireless location records.  The result would be another win for privacy protection and another setback for criminal investigations.



Traditionally, some components of electronic communication have been legally considered more private than others.  But Carpenter points in a new direction.  Based on the reasoning of the case, most if not all of our digitally-communicated life may ultimately be deemed highly private.  At that point we would communicate with less risk of LEA monitoring.  On the other hand, we would live at greater risk of criminal harm.

April 26, 2018


The European Commission just proposed legislation to solve the problem faced by European law enforcement agencies (LEAs) when they try to collect investigative data such as emails and text messages stored by communication service providers (CSPs) in foreign data centers.  The proposal, called the EU Production Order, would potentially replace existing investigative channels such as mutual legal assistance treaties, or “MLAT” treaties, which are considered slow and unreliable. The US recently enacted a similar law called the Clarifying Lawful Overseas Use of Data Act, also known as the “Cloud Act.”  How would the Production Order and the Cloud Act affect international CSPs?


February 8, 2018


In 2018 two new privacy laws take effect in the European Union.  One is the General Data Protection Regulation (GDPR), which upgrades the general EU standards of privacy protection. Included in the GDPR’s scope of coverage are communication service providers (CSPs). The other new privacy law is the Data Protection Directive on Police Matters (the EU Directive), which requires EU law enforcement agencies (LEAs) to protect privacy when conducting criminal investigations. The EU Directive gives each EU member state discretion to interpret the principles of the Directive in its own national laws. As a result, EU investigative privacy standards will likely vary from one state to the next.


December 13, 2017


The Supreme Court is now hearing a case that poses the question: what level of due process should a law enforcement agency (LEA) be required to meet before asking a communication service provider (CSP) to produce a criminal suspect’s historic cell phone location data? Based on the Court’s recent oral argument in the case, called Carpenter v. United States, it appears somewhat likely they will subject such location inquiries to the top-level “probable cause” standard. Why are the justices heading in that legal direction, and what would it mean for CSPs?