The law enforcement community has advocated that Apple iOS 8’s standard password encryption settings as well as Google’s intention to make encryption from an option to the default will result in an inability of law enforcement to access important information with a warrant when lives are at stake.
Apple released a press statement two weeks ago claiming that iOS 8 will be the most secure iteration of the operating system for Apple’s mobile products and smartphones. In addition to making the device more difficult to hack, Apple would also not retain any ability to recover passwords. In addition to being unable to recover these passwords to owners who forget these passwords, Apple noted that it would be unable to access the data on iOS 8 hardware even if police provided a warrant. Apple specifically stated that it “cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.” Not to be outdone by its main competitor, Google announced that Android would follow suit and shift encryption from an optional feature to the default for the upcoming update to the Android operating system.
However, after the initial praise by privacy experts calmed down, the law enforcement community responded that the proposed changes by Apple and Google actually were major losses for personal security. Digital data has continued to become a major source of evidence and leads for law enforcement in cases ranging from computer crimes to pedophilia to assault cases.
Cyrus Vance, Jr., the District Attorney for Manhattan noted that information gained from smartphone investigations was instrumental in the prosecution of gang members who mistakenly shot an innocent bystander, an “up-skirter” recording women in the New York subway, and an identity thief who kept bank account number and other financial information on their smartphone. Additionally he noted that almost every criminal case now includes digital information, typically stored on smartphones.
If Apple and Google fulfill their encryption promises, law enforcement will lose this source of evidence and it will be much more difficult to prosecute their cases.
Additionally, the data stored on smartphones is currently protected under the Fourth Amendment per Riley v. California. Law enforcement officers cannot search a smartphone without a warrant. Apple and Google’s policy take this decision even beyond the legal protections of our Constitution by making it a technical impossibility for a warrant to even reach the data on the phone.
Last Thursday, FBI Director James Comey responded that he did not understand why Apple and Google would “market something expressly to allow people to place themselves beyond the law.” Comey noted privacy concerns in the wake of Edward Snowden’s release of NSA surveillance tactics, but also that the FBI and law enforcement often looks to electronic data in cases of terrorism or kidnappings.
However, law enforcement analysts have noted that this shift to encryption will likely have a greater impact on smaller law enforcement agencies. The FBI and other large law enforcement agencies have access to greater technological assets, allowing them to either force access to encrypted phones or find ways around Apple and Google’s password systems. Smaller offices without these assets will likely not make any effort to access encrypted data.
John J. Escalante, chief of detectives for Chicago’s police department stated that “Apple will become the phone of choice for the pedophile. The average pedophile at this point is probably thinking, I’ve got to get an Apple phone.”
However it is important to note that information being discussed is information stored solely on the device itself. Apple and Google can still comply with warrants issued for information stored via cloud servers. Additionally law enforcement is still able to seek call data and limited location data from a smartphone’s service provider.
The FBI is currently in negotiations with Apple and Google regarding the new policy. As we transition into further encryption we will have to see how law enforcement chooses to address this new problem.