With Apple’s announcement of its new iPhone 6 10 days ago also came the announcement of an upgrade of its operating software – the iOS 8 – that now makes it impossible for law enforcement to break the code and retrieve the phone’s private information, even if it has a search warrant. On its website, Apple said:
Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government [search] warrants for the extraction of this data from devices in their possession, running [operating system] iOS 8.”
In other words, even if law enforcement is able to obtain a search warrant, the data demanded is locked away securely beyond its reach.
The same day Google announced that its upgraded software for its Android smart phone will also contain stout encryption software to accomplish the same thing. This delighted Christopher Soghoian, a software technology expert with the American Civil Liberties Union, who exclaimed:
This is a great move. Particularly after the Snowden disclosures, Apple seems to understand that consumers want companies to put their privacy first.
However, I suspect there are going to be a lot of unhappy law enforcement officials.
The first “unhappy law enforcement official” was FBI director James B. Comey, who expressed outrage that these companies dared to flaunt this encryption software. He even questioned why Apple and Google would “market something expressly to allow people to place themselves above the law” and threatened that “there will come a day when it will matter a great deal to the lives of people that we be able to gain access” to private information that is, or should be, protected under the Fourth Amendment to the Constitution. This, presumably, would be the same Constitution that Comey took an oath to support and defend.
Another unhappy law enforcement official was Ronald T. Hosko, a former FBI investigator, who called the new encryption software by Apple and Google “problematic,” adding that it will make life more difficult for law enforcement to collect key evidence. After all, he said, “Our ability to act on data [that is stored in these devices] is critical to our success” in preventing and solving crimes.
Up until June of this year, law enforcement had been given a huge carve-out from Fourth Amendment protections with the doctrine of SITA – Search Incident to Arrest – whereby smart phones obtained during an arrest could be downloaded with impunity and no need to obtain a search warrant. That carve-out, however, disappeared with the unanimous decision of the Supreme Court in Riley v. California, which concluded that: “Police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” In that decision, Chief Justice John Roberts noted:
The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
As such, wrote Roberts, they fall under Fourth Amendment protections:
Modern cell phones are not just another technological convenience. With all they contain and in all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
Although these upgrades in encryption software are welcome in the privacy wars, they scarcely leave law enforcement without tools to investigate and uncover criminal activity. They will still be able to seek records of calls or texts from cellular carriers, eavesdrop on conversations, and, based on the cell towers used, determine the general location of suspects. They will also be able to access private data deliberately or unintentionally backed up on remote cloud services. And for some time, the most sophisticated law enforcement agencies have had the capability of installing malicious software onto smart phones, turning them into virtual spies on the behavior of their owners.
The new encryption software, and the decision in Riley, are likely to have little impact on the National Security Agency. The NSA will continue to hoover citizens’ private personal data, conversations, and text messages, and store them in vast digital warehouses for future use at its convenience. In other words, it’s going to take far more than sophisticated encryption technology to terminate the NSA’s endless surveillance of innocents. But last week’s announcements by Apple and Google do portend a tectonic shift in privacy concerns as reflected by the unanimous decision of the Supreme Court. It is a small but important victory in the privacy wars.
The Washington Post: FBI blasts Apple, Google for locking police out of phones
The Washington Post: Newest Androids will join iPhones in offering default encryption, blocking police
The New American: Supreme Court Bans Warrantless Cellphone Searches