N a t i o n a l S e c u r i t y , T e c h n o l o g y , a n d L a w
A HOOVER INSTITUTION ESSAY
The Elephant in the Room: Addressing Child Exploitation and Going Dark
SUSAN HENNESSEY
Aegis Paper Series No. 1701
There is an unacknowledged Venn diagram at the heart of the Going Dark
1
debate. Circle A represents crimes for which various manifestations of technology pose extreme challenges to law enforcement investigations: for example, computer offenses that take place exclusively online or technology-based narcotics trafficking and money laundering. Circle B represents crimes for which society demands an exceptionally high level of effective prevention, investigation, and prosecution: violent offenses with identifiable victims like murder or rape. This is not to say Circle A crimes are unimportant
—
only that, taken alone, society is more inclined to view the security benefits of robust encryption as outweighing the net harms. Likewise, it is certainly true that investigation of Circle B crimes can be impeded by encryption and other technology. But more often than not, law enforcement has at least some other avenues of obtaining evidence, such as from a crime scene or from witnesses.At the intersection of the Venn diagram are two sets of crimes where encryption technology poses serious law enforcement problems
and
for which society expresses an especially low tolerance: terrorism and child sexual exploitation.
2
Our public dialogue focuses relentlessly on one of these sets of crime, and it largely ignores the other.Indeed, while the problem of encryption and terrorism investigations gets plenty of play in the public debate, the specific problems of child sexual exploitation receive relatively little attention beyond oblique references. This is perverse. The latter is a problem of immense global scope; it is deeply entangled with technology; and it animates law enforcement’s strongest interests in solving the Going Dark problem. There are many more child exploitation cases than there are major terrorism investigations, and they are much more likely to involve technologies of encryption pervasively.
Susan Hennessey is a ellow in National Security Law in Governance Studies at the Brookings Institution and managing editor o
Lawfare.
Special thanks to Benjamin Wittes, Jack Goldsmith, Helen Klein Murillo, and the Hoover Working Group on National Security, Technology, and Law or their support and input and to representatives rom the Department o Justice and Federal Bureau o Investigation or their invaluable insights and assistance.
2
Susan Hennessey • The Elephant in the Room: Addressing Child Exploitation and Going Dark
There are a number of additional reasons to focus more of the Going Dark conversation on child sexual abuse than we currently do. Because child sexual exploitation is relatively common, while terrorism is relatively uncommon, the majority of relevant case law is likely to be created in the context of child exploitation. Second, because child predators have historically been at the cutting edge of using technology to thwart law enforcement, the challenges and solutions that arise in this context may serve as a preview for those that will later appear in relation to terrorism and other serious crimes.The problems of child sexual exploitation are immediate and real. Whereas with respect to terrorism cases we often end up hypothesizing how law enforcement and policy makers will respond to “the next big attack,” in the child exploitation context the next attack is happening literally every day. Technology has facilitated a dramatic increase in the trafficking of child sexual abuse images and a concomitant increase in the severity of depicted abuse. Children as young as infants and toddlers are raped or otherwise abused on camera; those images are routinely shared among a community of offenders; and those offenders deploy technologies that make it difficult or impossible to discover the perpetrators, prosecute their crimes, or identify and rescue victims.Faced with this reality, civil libertarians and privacy advocates have been loath to allow for any latitude, either in regulating encryption or in facilitating work-arounds like lawful hacking. This absolutist strategy is, I shall argue here, untenable over the long term. The simple reality is that if we are not going to regulate encryption, then we are going to have to do something else to address these issues.In this paper, I describe the particular impacts of Going Dark on the prevention, investigation, and prosecution of child sexual abuse crimes; and I make the case for lawful hacking as a promising solution, identifying the legal questions that must be addressed for hacking to be a practical and realistic response. I start by reviewing the available statistics related to quantifying the scope of child sexual abuse and related materials. The numbers paint an undeniably alarming portrait of their scope and severity. I then address the specific features of Going Dark, both technical and otherwise, in the context of investigating child exploitation crimes. Taken together, these features make child sexual exploitation crimes easier to commit and more difficult to detect.I argue that lawful hacking, wherein the government exploits existing software vulnerabilities to circumvent security, is a necessary element of a Going Dark solution. I then examine the various legal controversies that must ultimately be resolved for lawful hacking to be a solution in practical terms. First, I argue that the recently resolved controversy over Rule 41 of the Federal Rules of Criminal Procedure
3
Hoover Institution • Stanford University
encourages the use of warrants and that warrants for large-scale hacking operations can satisfy all constitutional requirements, including particularity and probable cause.I then examine the issue of vulnerability disclosure, both at a policy level and as a matter of constitutional and procedural right in criminal trials. I recommend mechanisms to ensure that disclosure requirements do not undermine the efficacy of lawful hacking. Finally, I address the complex international features of Going Dark and child sexual exploitation investigations and suggest those challenges could be best addressed through a pragmatic framework rooted in commonly understood offenses.
The Scope of Child Sexual Abuse and Child Sexual Abuse Materials
It is difficult to precisely quantify the scale of the problem of child sexual abuse and abuse images. But the estimated rates of hands-on sexual abuse of children are staggering. Approximately one in ten children
—
one in seven girls and one in twenty-five boys
—
will be subject to a contact sexual offense before reaching the age of eighteen.
3
Although many people perceive adult sexual assault as a more common offense, nearly 70 percent of all reported sexual assaults involve a victim under the age of eighteen. In crimes of rape involving penetration, 29 percent of rape victims are between twelve and seventeen years old, and 15 percent of victims are younger than twelve.
4
Because only around 38 percent of child victims disclose the fact that they have been sexually assaulted, these numbers almost certainly dramatically understate the problem.
5
Only some instances of child sexual abuse are memorialized in images; therefore, the numbers related to abuse images represent only a fraction of child victims. But even within this subset, immense numbers of both victims and offenders are represented. A review of available metrics, both general and related to specific operations, reveals that the problem is very serious and rapidly getting worse. Consider the following:
• The National Center for Missing and Exploited Children (NCMEC) CyberTipline
has received 8.4 million reports since 1998
—
nearly half of those in 2015 alone, the most recent year with available metrics.
6
Since 2002, NCMEC has reviewed
more than 160 million images and videos of suspected child abuse.
7
Between 2005 and 2009, the Victim Identification Program saw a 432 percent increase in the number of files submitted.
8
In 2013, it reviewed twenty-two million images and videos
—
a 5,000 percent increase from 2007.
9
In 2015, the number of images and videos reviewed grew to twenty-six million.
10
• NCMEC estimates that, since 2002, more than 10,500 minor victims depicted in
child sexual abuse images have been identified and located by law enforcement.
11