Is Apple Intentionally Crippling Law Enforcement Access to Digital Evidence?

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Apple recently announced new iPhones and a new operating system for its mobile devices. Amidst the hubbub, Apple also revealed that the new operating system would render it impossible for Apple to give law enforcement officers access to locked iPhones, even with a search warrant. Many in law enforcement aren’t happy about this, with FBI Director James Comey stating that he can’t understand why companies would “market something expressly to allow people to place themselves beyond the law.” But is that what’s going on?

Background. Under previous versions of its mobile operating system, Apple had the ability to recover certain items from locked phones. According to its law enforcement guidelines:

For iOS devices running iOS versions earlier than iOS 8.0, upon receipt of a valid search warrant . . . Apple can extract certain categories of active data from passcode locked iOS devices [including] . . . SMS, iMessage, MMS, photos, videos, contacts, audio recording, and call history. Apple cannot provide: email, calendar entries, or any third-party app data.

Change with the new operating system. Apple has just rolled out iOS 8, the latest version of its mobile operating system. Apple says that “[f]or all devices running iOS 8.0 and later versions, Apple will no longer be performing iOS data extractions as the data sought will be encrypted and Apple will not possess the encryption key.” The technical explanation is detailed, but basically, in the new operating system, Apple is encrypting more data and is using stronger encryption – so strong that Apple itself can no longer crack it. Note that data backed up to Apple’s iCloud service will still be available to law enforcement with a warrant, but users may configure their phones not to link to iCloud.

One view: Apple’s helping bad guys and hurting police. As noted above, the law enforcement is disturbed by this turn of events. A Chicago police executive stated that “Apple will be the phone of choice for the pedophile.” Manhattan District Attorney Cyrus Vance has called on Apple to reverse course – and for Congress to intervene if Apple doesn’t act. And law professor Orin Kerr initially stated that he was “troubled” by Apple’s new policy, though he has since moderated his view. This reaction may be due in part to Apple’s proud touting of its inability to provide data to law enforcement. At this web site, Apple crows that “[u]nlike our competitors, Apple cannot bypass your passcode and therefore cannot access [user] data [in response to government requests].” That makes it seem as though the purpose of the enhanced encryption is to impede law enforcement.

Another view: Apple’s improving phone security. There’s another possible perspective on Apple’s actions. This Slate article argues that “Apple is not designing systems to prevent law enforcement from executing legitimate warrants. It’s building systems that prevent everyone who might want your data—including hackers, malicious insiders, and even hostile foreign governments—from accessing your phone.” On this view, Apple is strengthening encryption to protect user data from bad actors, like those who apparently hacked Apple’s iCloud system and accessed nude photos of various celebrities a month ago. Apple’s inability to comply with search warrants for locked phones is a negative, but innocent, side effect of a positive security development.

The next shoe to drop. Whichever view of Apple’s motives is correct, Apple’s actions will have consequences. Already, Google has announced a similar privacy enhancement to its next Android operating system, due next month. Going forward, it will be interesting to see whether Congress takes legislative action to require mobile operating systems to be equipped with “backdoors” that can be used by law enforcement pursuant to court order. As always, reader perspectives and insights are welcome.

15 comments on “Is Apple Intentionally Crippling Law Enforcement Access to Digital Evidence?

  1. Beyond the law? There is no crime in that. Their is a crime in placing oneself about the law, and truth is many in our law enforcement communities have and are doing just that.

    When you read the Declaration of Independence (consent of governed), the US Constitution and its Bill of Rights, and the several State Constitutions and their statements of rights, all seem to imply that the People in this nation are in fact the ‘sovereigns’ and that we delegate ‘limited well regulated authority’ to our agents in government (public servants)to act in our collective names United States of America, State of North Carolina ETC.

    Its odd that ‘supposed freemen’ who after much study have concluded that the ‘rightful, legal, lawful sovereigns in this nation are in fact the People and express this thought openly are branded ‘outlaws’ and ‘domestic terrorists’ by their ‘public servants’ in government.

    The People have an absolute secured ‘unalienable right’ (supposedly) to privacy (See US 4th amend). They also have a right to ‘due process’ (5th and 14th) (supposedly). Which means that if our servants want to ram their noses into our private affairs, they are ‘required’ (supposedly) to follow the due process (get a warrant), that specifies EXACTLY WHAT THEY ARE LOOKING FOR and WHERE (No General warrants (supposedly) They do this all the time though).

    They are mad because their new toys (stingers fake cell towers for nosey smucks acting under the color of law and right for the most part) won’t work on the Apple products so they can ‘entrap People’.

    More power to Apple. This nation is not supposed to be governed by they wants and whims of our servants according to their ‘dictates’. If the People have a problem with Apples ‘secured cell’ let them speak out. I doubt they will.

  2. The police are the biggestlaw breakers in this society. They can kill you facing or in the back and always get away with it. Also what ever happened to the 4th amendment.

    • Our LEOs defiantly have a large burden, and I would agree that many are ‘acting under the color of law and official right’ (which is illegal), but that they are not alone in their lawless actions and deeds. Corruption in government in my opinion is rampant and very wide spread, and all of it done under the color of law and official right.

      The average man cannot afford ‘justice’, and then for many of those that can what they are receiving is not actually ‘blind justice’ at all. It is preferential treatment which has the affect of placing those that can afford it ‘beyond and above’ our laws.

  3. Law enforcement does not and should not have access to one’s phone without a warrant. Any officer who takes a phone and views anything on it has violated a person’s rights. Case dismissed by any reasonable judge.

    On the other hand, Apple (and Android if the company follows suit) has handed potential terrorists or other law breakers (think drug cartels) a win. With an appropriate warrant, law enforcement agencies have been able to break cases and send seriously bad guys to prison. Now, even with a warrant, law enforcement agencies’ hands are tied when major corporations thumb their nose at those whose mission is to protect the public and put criminals AND terrorists behind bars.

    Congress need to fix the “back door” issue or innocent people will pay the price for stupidity engineered by corporate executives who do not have a clue as to the danger their phones and software pose.

    • For 100s of years our LEOs were not hampered from investigations merely because they could not legally or illegally access cell phones, as they did not exist. I am confident they can still today do investigations without cell phone access. This ability to access cell phones and other digitized communications (internet etc)legally or unlawfully opens the doors for ‘entrapment’ which in America is supposedly illegal.

  4. Good for Apple. Privacy has value. Law enforcement officers, judges, and prosecutors have been too consistently irresponsible with the power they have to justify giving them even more power over the public.

  5. I do not see what the big deal is. All the government agent seeking the information has to do is call NSA. Don’t they have all that stuff anyway?

  6. I view this change as being wholly within Apple/Google’s rights and within an individual’s rights to secure the vast amounts of personal and professional information held on smartphones. Today’s smartphones hold confidential, personally-identifiable, and proprietary information. Without adequate security, this information is subject to security breaches. Any backdoor, whether intended to only be used for law enforcement or not, is a potential security breach. Information security is a big concern these days. Think about how many commercials you see for LifeLock, computer virus scans, and other services that are trying to protect your information. Why should we allow law enforcement to have a backdoor when it will inevitably be used by nefarious third-parties? I think Congress would be overstepping their authority by passing a law telling Apple/Google that they cannot secure their products in the way most beneficial to their customers. I would hope that Apple and Google would team up to bring that Constitutional challenge.

    Also, law enforcement already has enough tools to investigate and arrest criminals. If they cannot find enough evidence without going through someone’s smartphone, I question whether there is probable cause to believe they did anything wrong in the first place.

    • Alex, very well stated.

  7. Since warrants are issued with virtually no probable cause every day, and since no real criminal enterprise can operate solely from a phone, it is a good thing that we can have some semblance of privacy. Normally cops want a phone to look for additional evidence and are just fishing. The people know that the intelligence agencies are running roughshod over our rights and are not to be trrusted whatsoever, and most will welcome some privacy. How did cops get along before all these modern devices? They had to investigate and work for an arrest, not just search randomly until they hit on something.

    How many ” terrorists ” have been charged as a result of a phone warrant in this nation? None. This scare tactic is meant to subvert all our expectations of privacy, and is the direct result of the Cheney/Bush cabal’s treachery from 9-11 onward. This is really about making sure that the government can snoop into and and all of your business, legal or not. The ” war on drugs ” has decimated most of our rights, and if we allow the government to insure that a warrant, which may not get examined until later to insure real cause, is enough for snooping into our lives, shame on us. So the cops have to actually get off their duffs and work a case..so what?

    • Well said

  8. If Apple or anyone else can come up with a hacker proof OS that prevents ‘all snoops’ from treading through my personal information this needs to be accepted and widely marketed POST HAST.

    This would serve the ‘common good’ and protect the People from bozos snooping through their records, stealing their ID, creating credit accounts and leaving some poor sod to pay a thief’s bills, and have their credit ruined. It would also stop the same thieves from accessing personal bank accounts and draining them.

    Fact is I fear these sort of people far more than I do some clown with a towel on their head, or a dope pusher. The latter two I can see and take the appropriate actions. The former I cannot.

    Here is an analogy: Set up a complete functioning toy train set and get a little boy and place them in the room. Show them how when you turn the knob this way the train moves this way, and when you turn the knob the other way the train moves the other way. Let him do it a few times while you are there. Then tell him he can run this train only if he gets your permission first or when you are present. Leave the room and observe. Most little boys after some time will eventually go over and run that train. If they are there day after day with it there and you gone.

    Now, give a LEO some fully functioning ‘snooping device’ show him how to use it and give him the same instruction you gave the little boy. Leave and observe the same why you did the little boy. Eventually the temptation is to great and most are likely to play with the knobs.

    The primary difference is that the odds of the boy actually injuring any body or damaging any thing seriously are very LOW. The odds that an unscrupulous LEO playing with a toy while unauthorized is FAR GREATOR.

    Our LEOs have a very tough job and I must give them credit for it. I would not hold their positions. But LEOs are just men and women like everyone else, and are subject to temptations and other natural human errors. The uniforms, badges, and guns do not make them ‘supra natural beings’ above human faults.

  9. Maybe it’s just where I work and live, but a few things I’ve noticed is that the vast MAJORITY of law enforcement I deal with are following the law. In fact, probably a higher percentage of them are following the law than the general public as a whole. Not saying there aren’t criminal cops, just that I believe the percentages are far lower than what everyone else here seems to think, where they seem to believe all cops, or most cops, or at least a significant minority, are violating laws, civil rights, etc, rampantly and without any fear of being caught. I disagree on that wholly.

    I will say that some cops do, without doubt, violate the law. I’ll also say that some are going to operate in “gray” area where there is no clear-cut defined law to address their behavior, and they’re just waiting on case law to establish guidelines (I look at the Gant case here as an example of behavior that previously was kind of tacitly approved, but is now clearly not allowed).

    In regards to the Apple issue, I’m not a computer forensic specialist, but it seems that there is still probably a way for law enforcement to circumvent the passcode of a phone and obtain the information within that device with the proper warrant (speaking of warrants, I’ve never seen one issued without probable cause… I’ve seen a few denied actually, and let’s all be realistic, P.C. is an incredibly LOW threshold, I mean, all it means is that a crime PROBABLY occurred and this person PROBABLY did it, that’s like 25% odds right there).

    I’m not a specialist, as I said, but it seems that I’ve read quite a bit about various devices used to copy phones/hard drives, which is possible to do even with a passcode in place, and then it seems that law enforcement could eventually crack the code or bypass it on their own anyway. So, at least to my knowledge, I don’t see this as a big stumbling block for law enforcement.

    Cops are already restricted from viewing anything on a smartphone that is not part of the core phone functions (phone numbers called basically is all they can look at now, I think, no pictures, etc, without permission/warrant), so most cops I know are getting signed waivers or warrants anyway.

    Basically, I think the FBI and federal government are over-reacting here, and fear-mongering Congress. But, that’s kinda part of their job, unfortunately, since if they can make it easier to get info that makes it cheaper to get info and that doesn’t affect their budget. And, realistically, a large part of the game is budgetary.

    • Chris, I suspect that for the most part most of them are good, but how does the average person discern between them? I suspect that a few bad ones make the People weary of ALL of them because you don’t know until its to late.

      Maybe if they did a better job of policing themselves and not protecting the ‘brotherhood’ at the risk of being condemned by the ‘brotherhood’ the People would have more trust in them.

  10. Its good for Apple. Privacy is important

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