On September 20, 2016, Assistant Attorney General Leslie R. Caldwell spoke at the New York University Center for Cybersecurity on how technology has enabled cyber criminals and the current limitations on the Justice Department’s response to cybercrime. Caldwell began discussing the similarities and differences between cybercrime criminal enterprises and the more traditional organized crime groups such as La Cosa Nostra in New York City. Caldwell noted that two recent successful enforcement efforts against cyber criminals—Carder.su and Darkode—relied on traditional organized crime enforcement techniques, specifically infiltration by undercover agents or confidential informants. She added, however, that fighting cybercrime also introduces new challenges. First, Caldwell discussed the challenge posed by the use of new encryption technologies that preclude access to data without the consent of the user and noted that some encryption technologies, which the DOJ refers to as “warrant-proof encryption,” prevent a service provider from producing usable, unencrypted information even when presented with a valid court order. Recognizing that “[s]ecuring and keeping private our electronically-stored information is critically important,” Caldwell warned that “changing technologies” and “the economic interest of the private sector” should not hinder the needs of public safety and national security. Second, Caldwell discussed the challenged faced by the DOJ’s limited ability to gather digital evidence abroad. Caldwell discussed the “Microsoft Ireland” case, in which the Second Circuit held that a judge could not authorize the use of a Stored Communications Act warrant to compel disclosure of email communications stored in Microsoft’s Ireland data center and noted that U.S. businesses are increasingly storing electronic data abroad. As a result of the challenges posed by this decision, Caldwell stated that the administration intends to submit legislation to address “the significant public safety implications of the Microsoft decision.”
