Assistant Attorney General Beth A. Williams Delivers Remarks to the National Association of Attorneys General on Responsible Encryption and Lawful Access

Remarks as Prepared for Delivery

Good afternoon, everyone.  First, I would like to thank Amie Ely and the wonderful team at NAAG for all of their amazing work, and for hosting this event on such an important topic.  Thank you as well to everyone in the audience for taking the time to join virtually for what should be a truly interesting conversation.  Perhaps it’s fitting that we are having a discussion — via webcam — that highlights the importance of digital evidence.

As Amie said, my name is Beth Williams, and I am the Assistant Attorney General for the Office of Legal Policy, or “OLP.”  OLP sits at the intersection of the Justice Department’s many different components, and is responsible for developing and coordinating high-priority policy initiatives for the Attorney General.  OLP is often referred to as the “think tank” of the Department of Justice.  Because OLP is not a litigating component, we have the freedom to be proactive, which means thinking ahead to what will be the most pressing concerns going forward in criminal justice, national security, and many other areas.

Of the policy issues on which I’ve had the opportunity to work while at the Department, it’s clear that responsible encryption and Lawful Access is one of the most essential to public safety, both now and in the future.  When I say “Lawful Access,” I am referring to the government’s ability — consistent with the Constitution and all applicable laws — to access the digital evidence necessary to investigate and prosecute criminal and national security threats.  This includes evidence stored on locked devices — which we will hear much about during the presentations today — as well as evidence transmitted over networks.

In 2020, it is hard to imagine criminal activity that does not in some way connect with the digital world, from online child exploitation and human trafficking, to violent gang activity and terrorism.  And yet, over the past several years, the development of “end-to-end” or “warrant-proof” encryption means that law enforcement is increasingly unable to access essential evidence to combat these threats, even with a warrant or court order.  The situation is especially dire for many of you, our state and local partners, who handle the vast majority of criminal investigations and prosecutions in our country.

The Justice Department explored this phenomenon at a summit entitled Lawless Spaces: Warrant-Proof Encryption and Its Impact on Child Exploitation Cases, which included an eye-opening panel on the experience of state and local law enforcement with warrant-proof encryption.  I encourage you all to view a recording of the event on DOJ’s Lawful Access website.

During the summit, I had the privilege to speak with a mother who experienced the real-life nightmare of learning from law enforcement that her daughter was subjected to sexual abuse shared online.  At the time, the images of her abuse were the most highly traded child sexual abuse materials in the world.  Analysts at the National Center for Missing & Exploited Children (or NCMEC) were able to determine that the criminal responsible was the child’s own biological father, who had been abusing his daughter since she was five years old.  Fortunately, law enforcement was able to analyze the evidence, rescue the child, and bring her abuser to justice.

Increasingly, however, tragic stories like this one do not result in rescue for the child or justice for the abuser.  During our work on Lawful Access, we learned about a case in Ohio, where an undercover cop responded to an online ad for prostitution.  The ad implied that the woman being sold was potentially a victim of sex trafficking, and young—possibly even underage.  Law enforcement arranged to meet the girl and her escort at a hotel, where they quickly established that she was only 16 years old.  Police arrested the girl’s handler and seized his cell phone.

The next day, the suspect told an acquaintance over a jail telephone that “If they get in my phone, I’m doing time for other [stuff].”  Law enforcement obtained a search warrant for the phone, which they expected to contain names of other potential victims and predators.  But law enforcement wasn’t able to access that information because the phone was locked and encrypted.  In fact, we may never get the evidence needed to prosecute the suspect for his most serious offenses, bring other offenders to justice, or save other potential victims.

The exponential increase in child exploitation would be troubling enough by itself, but it is particularly alarming because of the accompanying spread of warrant-proof encryption technology that makes detection and prevention much more difficult, and, in many cases, simply impossible.  This is despite the fact that judges often rule that there is probable cause of evidence of a crime to justify the search.  Warrant-proof encryption defies our Fourth Amendment jurisprudence, in which courts have balanced privacy and the need for criminal enforcement for hundreds of years.

Consider that in 2019 alone, NCMEC received 16.9 million reports of suspected online abuse of children.  These reports are often the only lifeline for children who have been — or are continuing to be — abused in the most horrifying ways imaginable.  And yet, NCMEC estimates that, if warrant-proof encryption continues to expand, more than half of these tips will vanish.  In real terms, that means thousands of children who will not be saved.

We recognize that encryption is an essential tool that helps protect our data and devices from cyber threats; but we are also compelled to acknowledge that warrant-proof forms of encryption are subject to misuse and abuse, and should be addressed.

As Attorney General Barr has stated, “making our virtual world more secure should not come at the expense of making us more vulnerable in the real world. . . .  The status quo is exceptionally dangerous, unacceptable, and only getting worse.”  I hope that today’s event will promote a dialogue about achieving real solutions for this urgent problem.  Thank you, all.

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    The Department of Defense (DOD) has made progress implementing initiatives to enhance capabilities that are used to identify friendly force locations during close air support (CAS) missions, but GAO identified additional actions that are needed to strengthen these efforts. Specifically, DOD has made limited progress in implementing 10 changes the department approved to address gaps in the interoperability of digital communications systems used to conduct CAS, hindering efforts to improve the speed and accuracy of information exchanges. DOD's efforts to assess the interoperability of digital systems used to perform CAS have been limited in scope. GAO found that DOD had formally assessed two out of 10 approved changes during joint service and multinational events, and these assessments were not conducted in a training environment that replicated capabilities of near-peer adversaries. DOD implemented a new capability in the U.S. Central Command area of responsibility to help identify the positions of friendly forces during CAS missions. However, GAO found that DOD did not provide adequate training for personnel who operate it or conduct an evaluation to resolve implementation challenges that have hampered its performance. DOD conducts evaluations of training programs for forces that participate in CAS missions, but GAO identified two areas where DOD can improve its efforts. First, the Army and Marine Corps have not systematically evaluated the effectiveness of periodic training for ground observers providing targeting information due to a lack of centralized systems for tracking training data and the absence of designated entities to monitor service-wide training. Second, the use of contract aircraft for training increased substantially between 2017 and 2019, but DOD has not fully evaluated the use of non-military contract aircraft to train air controllers for CAS (see fig.). GAO found that differences between U.S. military aircraft and contract aircraft (e.g., airspeed) can result in a misalignment of aircraft capabilities for certain types of training events. Without evaluating CAS training fully, DOD cannot have assurance that its forces are prepared to conduct CAS missions safely and effectively. Number of Hours Non-Military Aircraft Were Used to Train for Close Air Support for Fiscal Years 2017 through 2019 The use of ordnance delivered by aircraft to support U.S. military forces that are in close proximity to enemy forces on the ground requires detailed planning, seamless communications, and effective training. Mistakes in communications or procedures used to identify and maintain an awareness of the positions of friendly forces on the battlefield during CAS can result in the loss of U.S. military personnel. Senate Report 116-48 and House Report 116-120, accompanying bills for the National Defense Authorization Act for Fiscal Year 2020, included provisions for GAO to evaluate issues related to friendly-force identification capabilities in CAS missions. Among other things, this report evaluates the extent to which DOD has (1) implemented initiatives to enhance friendly-force identification capabilities during CAS, and (2) evaluated training for forces that participate in CAS. GAO analyzed documentation and interviewed officials regarding DOD efforts to develop and implement friendly force tracking capabilities for CAS; reviewed CAS training programs; and analyzed training data, including the number of hours that DOD used non-military contract aircraft for CAS training from 2017 through 2019. GAO is making 11 recommendations to DOD, including that DOD implement and assess initiatives to improve the interoperability of digital systems used in CAS and take additional steps to evaluate the training for certain forces that participate in CAS missions. DOD concurred with the recommendations. For more information, contact Cary Russell at (202) 512-5431 or RussellC@gao.gov.
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    In Crime News
    A former DeKalb County, Georgia, police officer and member of the Gangster Disciples was sentenced to 15 years in prison followed by five years of supervised release for racketeering conspiracy involving murder, announced Acting Assistant Attorney General Brian C. Rabbitt of the Justice Department’s Criminal Division and U.S. Attorney Byung J. “BJay” Pak of the Northern District of Georgia.
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    In U.S Courts
    Federal judges from New York to California are creating online civics opportunities throughout September to help students honor Constitution Day and Citizenship Day, despite the termination of courthouse trips and classroom visits due to the coronavirus (COVID-19) pandemic.
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    In Crime News
    A Shreveport, Louisiana, business owner was sentenced to 40 months in prison on Sept. 30, 2020, for filing false tax returns, announced Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division and Acting U.S. Attorney for the Western District of Louisiana Alexander C. Van Hook.
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  • Substance Use Disorder: Reliable Data Needed for Substance Abuse Prevention and Treatment Block Grant Program
    In U.S GAO News
    According to Substance Abuse and Mental Health Services Administration (SAMHSA) data, the number of substance use disorder (SUD) treatment facilities and services increased since 2009. However, potential gaps in treatment capacity remain. For example, SAMHSA data show that, as of May 2020, most counties did not have all levels of SUD treatment available, including outpatient, residential, and hospital inpatient services; nearly one-third of counties had no levels of treatment available. Stakeholders GAO interviewed said it is important to have access to each level for treating individuals with varying SUD severity. Availability of Substance Use Disorder Treatment Levels, by County, as of May 2020 SAMHSA primarily relies on the number of individuals served to assess the effect of three of its largest grant programs on access to SUD treatment and recovery support services. However, GAO found the agency lacks two elements of reliable data—that they be consistent and relevant—for the number of individuals served under the Substance Abuse Prevention and Treatment Block Grant (SABG) program. For example, grantee reporting includes individuals served outside of the program, which limits this measure's relevance for program assessment of access. SAMHSA plans to implement data quality improvements for the SABG program starting in fiscal year 2021. However, the agency has not identified specific changes needed to improve the information it collects on individuals served. As SAMHSA moves forward with its plans, it will be important for it to identify and implement such changes. Doing so will allow SAMHSA to better assess whether the SABG program is achieving a key goal of improving access to SUD treatment and recovery services or whether changes may be needed. Treatment for SUD—the recurrent use of substances, such as illicit drugs, causing significant impairment—can help individuals reduce or stop substance use and improve their quality of life. SUDs, and in particular drug misuse, have been a persistent and long-standing public health issue in the United States. Senate Report 115-289 contains a provision for GAO to review SUD treatment capacity. This report, among other things, describes what is known about SUD treatment facilities, services, and overall capacity; and examines the information SAMHSA uses to assess the effect of three grant programs on access to SUD treatment. GAO analyzed national SAMHSA data on SUD treatment facilities and providers, and reviewed studies that assessed treatment capacity. GAO also reviewed documentation for three of SAMHSA's largest grant programs available to states, and compared the agency's grant data quality to federal internal control standards. Finally, GAO interviewed SAMHSA officials and stakeholders, including provider groups. GAO is recommending that SAMHSA identify and implement changes to the SABG program's data collection efforts to improve two elements of reliability—the consistency and relevance—of data collected on individuals served. SAMHSA concurred with this recommendation. For more information, contact Alyssa M. Hundrup at (202) 512-7114 or HundrupA@gao.gov.
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  • Prescription Drugs: Department of Veterans Affairs Paid About Half as Much as Medicare Part D for Selected Drugs in 2017
    In U.S GAO News
    GAO found that the Department of Veterans Affairs (VA) paid, on average, 54 percent less per unit for a sample of 399 brand-name and generic prescription drugs in 2017 as did Medicare Part D, even after accounting for applicable rebates and price concessions in the Part D program. GAO also found that 233 of the 399 drugs in the sample were at least 50 percent cheaper in VA than in Medicare, and 106 drugs were at least 75 percent cheaper. Only 43 drugs were cheaper in Medicare than in VA. The percent difference in price between the two programs was greater on average for generic drugs. Specifically, VA's prices were 68 percent lower than Medicare prices for the 203 generic drugs (an average difference of $0.19 per unit) and 49 percent lower for the 196 brand-name drugs (an average difference of $4.11 per unit). Average Per-Unit Net Prices Paid by Department of Veterans Affairs and Medicare Part D for Selected Drugs, 2017 Note: GAO's sample of 399 drugs included the top 100 brand-name and generic drugs in Medicare Part D in 2017, by: (1) highest expenditures; (2) highest utilization (by quantities dispensed); and (3) highest cost-per use. Per-unit prices are weighted to reflect differences in utilization in the two programs. Medicare prices reflect expenditures after accounting for rebates and other price concessions. While there are many factors that impact prices in the complex drug market, GAO identified several key program features that may contribute to the consistent price differential between VA and Medicare Part D. For example, Medicare's beneficiaries are divided among numerous prescription drug plans, which each negotiate drug prices with manufacturers. In contrast, VA is a single integrated health system with a unified list of covered drugs—thereby possibly strengthening its bargaining position when negotiating. In addition, VA has access to significant discounts defined by law, and can then negotiate further for lower prices. These discount prices are not available to Medicare Part D plans. GAO provided a draft of this product to HHS and VA for comment. Both agencies provided technical comments, which GAO incorporated as appropriate. In 2017, combined, Medicare Part D and VA accounted for approximately $105 billion in prescription drug sales—nearly one-third of total U.S. expenditures—and covered nearly 52 million individuals. The two programs use different methods to pay for prescription drugs. Medicare reimburses Part D plan sponsors, which in turn pay pharmacies to dispense drugs. VA primarily uses a direct purchase approach to acquire drugs from manufacturers. GAO was asked to examine differences in the amounts major federal programs paid for prescription drugs. This report: (1) compares average unit prices for prescription drugs in Medicare Part D to those in the VA; and (2) describes factors affecting prices in the two programs. GAO analyzed (1) CMS data for Medicare Part D payments to retail pharmacies as well as rebates and other price concessions Part D plans received and (2) VA drug purchasing data. These data were from 2017, the most recent data available at the time of GAO's analysis. To select a sample of drugs GAO identified the top 100 brand-name and 100 generic drugs in Medicare Part D in 2017 for three categories: (1) highest expenditure, (2) highest utilization, and (3) highest cost-per use. In total, this yielded 399 non-duplicate drugs (203 generic and 196 brand-name), which represented 44 percent of Medicare Part D spending in 2017. GAO compared weighted average unit prices for these drugs. GAO interviewed CMS and VA officials, and reviewed academic and government reports to understand factors that may affect prices in the two programs. For more information, contact John Dicken at (202) 512-7114 or dickenj@gao.gov.
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    A federal grand jury in Oxford, Mississippi, returned a six-count superseding indictment charging five alleged members of the Gangster Disciples gang, announced Acting Assistant Attorney General Brian C. Rabbitt of the Justice Department’s Criminal Division and U.S. Attorney William C. Lamar of the Northern District of Mississippi. 
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    The U.S. Department of Justice and U.S. Environmental Protection Agency (EPA) announced today that the United States has filed and simultaneously settled a civil lawsuit against Toyota Motor Corporation, Toyota Motor North America Inc., Toyota Motor Sales U.S.A. Inc., and Toyota Motor Engineering & Manufacturing North America Inc. (Toyota) for systematic, longstanding violations of Clean Air Act emission-related defect reporting requirements, which require manufacturers to report potential defects and recalls affecting vehicle components designed to control emissions.
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    In Crime News
    Five residents of Lima, Peru, were extradited to the United States and made their initial appearances in Miami federal court, where they stand accused of operating a large fraud and extortion scheme targeting Spanish-speaking consumers in the United States, the Department of Justice and U.S. Postal Inspection Service announced today.
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  • Appeals Court Upholds 27 Month Prison Sentence Of Former Penn National Horse Trainer
    In Crime News
    The U.S. Attorney’s Office for the Middle District of Pennsylvania announced that on Jan. 11, 2021, the U.S. Court of Appeals for the Third Circuit affirmed both the conviction and 27-month prison sentence of Murray Rojas, age, 54, of Grantville, Pennsylvania. That sentence was imposed by Senior U.S. District Court Judge Sylvia H. Rambo on May 6, 2019, after Rojas was convicted by a jury on multiple counts of causing prescription animal drugs to become misbranded in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), as well as conspiracy to commit misbranding.
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  • Former Deputy Jailer Sentenced to 48 Months for Violating the Civil Rights of an Inmate
    In Crime News
    ​​​​​​​A former Shelby County Deputy Jailer, William Anthony Carey, 31, was sentenced by U.S. District Judge Gregory F. VanTatenhove to serve 48 months in federal prison for violating the civil rights of an inmate in his custody.
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