Will new cellphone encryption prevent the FBI from abusing your privacy?

October 22, 2014

It has been an arduous year for credit card users. Target, Home Depot, and K-Mart all were hacked and had shopper’s credit card information stolen. Fortunately, some of the information was encrypted and thus unusable to the hackers. Their response was to begin encrypting more of the credit card data. It seemed to be a very natural step. Once you become aware of your vulnerability, you begin to develop new ways to protect yourself.
It also has been a rough year for people who take pictures on their cell phones. After hundreds of naked celebrity photos were recently leaked—allegedly taken from the celebrities cellphones—a popular photo-sharing app, Snapchat, was also hacked. Apple and Google both decided to encrypt their cell phones to make them more private and secure. But not everyone is happy about this move to protect cell phone user’s privacy from hackers.
According to CNN Money the FBI Director compared selling iPhones with new data encryption to selling “cars with trunks that couldn’t ever be opened by law enforcement with a court order.” Furthermore, he added to CBS, “The notion that people have devices . . . that with court orders, based on a showing of probable cause in a case involving kidnapping or child exploitation or terrorism, we could never open that phone? My sense is that we’ve gone too far when we’ve gone there.” The Director of the FBI asserted that the FBI always gets court orders before forcing a company to use their “backdoor” and turn over user records. He also said that “[w]e also need a regulatory or legislative fix . . . so that all communication service providers are held to the same standard,” and that companies like Apple or Google, should be required to build lawful intercept capabilities for law enforcement.

The FBI’s actions using a back-door for a cellphone search warrant are essentially akin to executing a search warrant on a home, without notifying the resident.

This brings up a very interesting point. The FBI’s actions using a back-door for a cellphone search warrant are essentially akin to executing a search warrant on a home, without notifying the resident. There has long been a “knock and announce” rule. For more information on this, please see the Supreme Court’s application of the “knock and announce rule” as part of a “reasonable search” in Wilson v. Arkansas, 514 U.S. 927 (1995).The Supreme Court identified several reasons for the “knock and announce” rule including protecting the occupants’ privacy and dignity. While law enforcement do have access to a “sneak-and-peek” warrant, those type of warrants are extremely rare, and only about fifty are issued a year across the entire country. The FBI’s current access to phones is similar to this extremely rare “sneak-and-peek” without any valid reason.
In Riley v. California, the Supreme Court held that a cellphone is more protected than an arrested person’s other belongings. “A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” With the importance the Supreme Court places on cell phone privacy, why are they being even less protected than a home?
The Director of the FBI’s comment that “with court orders . . . we could never open that phone” is utterly unrealistic. Rather, after law enforcement obtained a court order, the law enforcement agency would be required to approach the phone’s owner, inform them of the order, and then access it within their oversight, like a traditional, legal, and dignified search of a home.