Ride the Lightning

FBI Faces Off Against Apple and Google for Encrypting Phones

September 29, 2014

Last week, The Washington Post carried a story about the FBI's response to moves by Apple and Google to encrypt smartphones, thereby denying law enforcement easy access to information stored on the devices, even when valid search warrants are obtained.

They didn't send out a rookie to carry the flag. The remarks were made by FBI Director James Comey.

Law enforcement nationwide has opposed smartphone encryption and Comey trotted out the usual suspects – the need for information to find terrorists, murderers and child pornographers. While there is certainly validity to the concerns, many commentators point out that law enforcement's greed to "collect it all" (often without a warrant) as revealed by Edward Snowden, has understandably driven people to protect their privacy.

Comey’s remarks followed Apple's announcement that its new iOS is so thoroughly encrypted that Apple itself is unable to unlock iPhones or iPads for police. Google is moving to a similar system in the future.

Comey said he could not understand why companies would “market something expressly to allow people to place themselves beyond the law.” (see reference to Snowden above for the answer Mr. Comey).

The era of easy access to smartphones is probably drawing to a close, not just because of encryption but because courts are also erecting barriers to law enforcement searches. A unanimous Supreme Court decided in June that police normally require a warrant to search a cell phone.

Law enforcement still has a lot of weapons. It can seek records of calls or texts from cellular carriers, eavesdrop on conversations and, based on the cell towers used, determine the general locations of suspects. It can seek data backed up on remote cloud services, which increasingly keep copies of the data collected by smartphones. And sophisticated law enforcement agencies can arrange to send malware to phones capable of making them spy on users.

The government's nonchalance toward privacy has created a backlash from American technology companies. I expect the tension between the two to continue to escalate for the foreseeable future. And I expect a lot of folks sitting in jail cells because they won't disclose decryption keys. It will be interesting to see how the legal system handles this can of worms.

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