Last week, Apple announced that its new iOS 8 operating system would block the company from extracting information from devices that have a four-digit passcode, even when a warrant has been issued. A day later, Google said its next Android operating system would provide the same protection. While all this is a hit with security advocates, one group isn’t happy—law enforcement.
In a Washington Post op-ed, Ronald T. Hosko, president of the Law Enforcement Legal Defense Fund and former assistant director of the FBI Criminal Investigative Division, tells a cautionary tale in which a man was kidnapped and tortured, leaving police scrambling for leads. After obtaining warrants, law enforcement was able to intercept the phone calls and text messages of possible conspirators in this crime. The information they obtained led them to the victim just moments before he died. Hosko writes that Apple and Google’s new policy “will create needless delays that could cost victims their lives.”
While the story is frightening, it is unrelated to the recent changes—the information law enforcement accessed through a warrant in that case will still be available. Hosko acknowledges the difference when he writes that the new encryption policy “doesn’t make it any harder to tap, or ‘lawfully intercept’ calls. But it does limit law enforcement’s access to data, contacts, photos and email stored on the phone itself.”
In the past, law enforcement could bring an iPhone and a warrant to Apple headquarters and have engineers extract data for them. The new operating system makes it technically impossible for Apple to bypass your password, but this doesn’t mean your data is completely inaccessible to police. Apple can still hand over information backed up from your device onto iCloud. And if the information the police want is not on iCloud, warrants can be issued to phone firms for calls logs, or third-party apps like Snapchat for pictures.
According to a report written earlier this week in The Wall Street Journal, law enforcement officials are calculating how to best challenge Apple and Google. One Justice Department official compared the situation to “a house that can't be searched, or a car trunk that could never be opened.” But does the new operating system make a device truly impenetrable? Experts say no—police could find a way around Apple’s system; they will just have to do it without Apple’s help. Orin Kerr, a professor at the George Washington University, adds that a court could order suspects to unlock their device.
Some believe police are not revealing what they are truly most fearful of here. Independent journalist Marcy Wheeler thinks the impact will most immediately be felt within the 100 mile “border zone” in which law enforcement doesn’t need a warrant to search an individual’s property. This area includes major metropolitan areas, and is estimated to include nearly two-thirds of the U.S. population.
Wheeler writes that new operating systems will have far-reaching consequences. For instance, the National Counterterrorism Center’s guidelines for managing the U.S. counterterrorism lists and databases allow evidence obtained through border encounters, including “electronic media/devices.”
FBI Director James Comey told reporters on Thursday, “What concerns me about this is companies marketing something expressly to allow people to place themselves above the law.” He added, "There will come a day—well it comes every day in this business—when it will matter a great, great deal to the lives of people of all kinds that we be able to, with judicial authorization, gain access to a kidnapper's or a terrorist or a criminal's device.”
In an interview with Charlie Rose last week Tim Cook commented on Apple’s recent data security developments: "People have a right to privacy."
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