11 October 2015, NYT: Obama Won't Seek Access to Encrypted User Data
NOV. 20, 2015
With Permanent Squad, New York Police Step Up Fight on Terrorism
By J. DAVID GOODMAN
In January, several days after heavily armed terrorists attacked Charlie Hebdo, a satirical newspaper in Paris, top officials with the New York Police Department held a drill to test the city's response to such an attack and found they had a problem.
As officers converged on 42nd Street in Manhattan near the United Nations headquarters, some took nearly an hour to get there. Others coming from plainclothes organized-crime and narcotics units in far-flung precincts in Brooklyn and Queens, did not look the part: street clothes, facial hair, semiautomatic weapons that did not match those being carried by colleagues in uniform.
"One of the observers said they look a little too much like the bad guys," John J. Miller, the deputy commissioner for intelligence and counterterrorism, said, describing the drill.
Out of that moment came the formation of a standing counterterrorism force whose initial platoon of 100 officers rolled out on Monday and whose ranks will swell to 527 officers by the end of the year, much bigger than any of the ad-hoc units that the department has deployed in the years since the Sept. 11 attacks. The new unit, composed of experienced officers, was made possible in part by an expansion of the overall head count in the department this year.
The timing, three days after the devastating attacks on Paris by teams of terrorists from the Islamic State, was coincidental. But it highlighted the message that New York police officers were going on "offense and defense" in response to terrorism threats, as the police commissioner, William J. Bratton, has said in a series of interviews and speeches over the last week.
The story of how the new unit, known as the Critical Response Command, came into being traces the history of the city's evolving approach to terrorism, from the creation of the counterterrorism and intelligence divisions in the months after the attacks of 2001, to 2004, when the Police Department began pulling precinct officers into counterterrorism details, to the aftermath of the 2008 Mumbai attacks, when officials realized they needed more firepower and officers trained to respond to multiple, simultaneous attacks.
The attacks in Paris last week, officials said, validated their idea that a permanent force -- one that could be rapidly dispatched with the appropriate armor and weaponry -- was needed to counter heavily armed assailants.
But even as the Police Department augments its ability to defend targets and respond to an attack, Mr. Bratton and other law enforcement leaders have complained that the emergence of technological hurdles is hampering the digital surveillance of terrorism suspects, as well as stymying the prosecutions of scores of criminal cases.
"We, in many respects, have gone blind," Mr. Bratton said on Sunday, referring to apps that encrypt messages and smartphones that are inaccessible even with a search warrant.
His comments, and those of James B. Comey, the director of the Federal Bureau of Investigation, in New York on Wednesday,  revived a longstanding debate between law enforcement officials and technology companies, one that had appeared settled last month when the Obama administration opted not to champion legislation  requiring access to encrypted communications.
The twin messages -- of a city better defended than ever, of intelligence capabilities hamstrung by "misguided efforts" by Silicon Valley companies, in the words of the Manhattan district attorney, Cyrus R. Vance Jr. -- showed the pressure felt by police officials as New Yorkers go warily through their routines following the attacks in Paris last week.
"I talked to a woman who works at a doctor's office this morning, and she knows what I do, and she says, 'I have to ask you, is it O.K. to ride the subway?' " said Chief James R. Waters, the head of the department's Counterterrorism Bureau since 2008.
"And I said to her, 'Absolutely it is,' " the chief said. "It happened in Paris, could it happen in New York? And short answer is yes. The long answer is, we are, in the New York Police Department, we are the most well-prepared police department in the country, if not the world."
On Friday, Mr. Bratton made a public show of riding the subway in Manhattan to allay concerns.
With the new unit, Chief Waters's bureau has ballooned this year in size and in equipment, with new cars fitted to hold Colt M4 semiautomatic assault rifles. He said the attacks last week had accelerated the pace of procuring equipment and training officers in counterterrorism tactics, including courses that include undercover "hostile surveillance" to detect those who might be gathering information about potential targets, and the use of new devices.
At the Police Academy on Thursday, a class of about 120 officers listened to instructions on terrorism threats as well as how to use "personal radiation devices" to detect potential hazards. The training lecture for the new unit included discussion of the four types of radiation -- alpha, beta, gamma, neutron -- as well as more practical information, such as the possibility that a person, or even a cat, could trip the device after a medical procedure.
In addition to the Critical Response Command, the department recently created a citywide unit of roughly 700 patrol officers -- the Strategic Response Group -- who are also trained to use and are outfitted with semiautomatic rifles. The weaponry represents a marked escalation in the arming of the department. Whereas in the past, only the Emergency Services Unit had assault riles in their vehicles, the department is in the process of roughly tripling the number of high-powered rifles at the ready in patrol cars to ensure that every officer trained to use them has quick access to them.
"It's a big change in the department," said Chief Waters, who compared it to a decision in 1990  to upgrade the weapon given to the city's transit officers, from revolvers to semiautomatic handguns. "There was a clear need to move to the next level."
The fear, for some city officials as well as for Mr. Comey, is that as officers gear up for the next attack, the job of preventing it has grown harder -- the "offense" part of Mr. Bratton's message. That is because the people who might be planning an attack have disappeared from digital sight behind a wall of encrypted communications.
"At that moment, the needle we have been searching the entire nation to find, and have found, goes invisible to us," Mr. Comey said in New York on Wednesday, describing how Islamic State fighters move their potential recruits from conversations on Twitter to encrypted apps.
However, the White House in October concluded that any "back door" that would allow law enforcement access to encrypted data would also create an opening that those same terrorists, as well as cybercriminals, foreign governments and others, could exploit.
"People shouldn't equate encryption with terrorism," said Stephen Schulhofer, a professor at the New York University School of Law who has written on the Fourth Amendment in the digital age. "Terrorists may encrypt their messages, but not everybody who encrypts their messages is a terrorist. The ratio is probably two billion to one."
With avenues for electronic surveillance closing, according to officials, the Police Department will be pressed to develop better sources on the ground in communities around the city.
"It absolutely stresses the capability for the intelligence agencies," said Mitchell D. Silber, a former director of intelligence analysis for the Police Department. "It puts more of a premium on human intel."
But offsetting digital surveillance with so-called human intelligence gathering presents particular challenges in the city, where the Police Department's actions in Muslim communities have been challenged in federal court. Mayor Bill de Blasio last year announced the formal end to what had been known as the Demographics Unit, made up of detectives given the task of mapping populations in Muslim neighborhoods. Critics contend that while the name has changed, the tactics have not.
"We have no evidence that they've ended the suspicionless surveillance against Muslim communities, which is at the heart of the lawsuit," said Baher Azmy, the legal director of the Center for Constitutional Rights, which is representing plaintiffs in a suit over the Police Department's surveillance of Muslims in New Jersey.
Mr. Bratton, speaking to reporters on Tuesday, bristled at the mention of the Demographics Unit, which he said had been irrelevant to the department's intelligence efforts and had gone dormant by the time he returned as commissioner last year.
"We have many other ways that we gather intelligence in the department," he said. "There is an ability to keep a thumb on the pulse of what's going on out there." For example, he said, detectives conduct surveillance in active investigations, and the department is building relationships with Muslims across the city.
The trouble, according to counterterrorism experts, is that the perception of discriminatory practices by the Police Department in Muslim communities reduces the willingness of many to work with officers in rooting out potential terrorism threats.
The new Critical Response officers, who will roam the city, anywhere from Times Square to Main Street in Flushing, Queens, appearing in different configurations and at different times of day, act as a deterrent to would-be attackers, officials said, and a kind of standing force ready to race to the scene of a strike in minutes.
"After Charlie Hebdo, I said, 'Let's drill this,' " said Mr. Miller, the deputy commissioner.
At the time, the Police Department was relying on a first layer of protection -- about 100 patrol officers borrowed for the day from each precinct to go to potential targets -- and a second layer of response in the form of officers from the Organized Crime Control Bureau, who were trained after the Mumbai attack to use semiautomatic rifles. But those officers did not keep the weapons close at hand in their day-to-day work, which includes plainclothes operations in which some officers seek to blend into their surroundings. Mobilizing and equipping them at a moment's notice took time, the department found.
"Do they have the guns with them? No, the guns are back at the office. Are the guns loaded? No," Mr. Miller said. "The test we ran, it was suboptimal."
The department has, over the last year, "double or tripled our ability to respond to a situation where there are multiple locations, multiple shooters," he said.
"Those minutes," he continued, "are critical."