U.S. law enforcement officials are urging Apple Inc. (AAPL) and Google Inc. (GOOG) to give authorities access to smartphone data that the companies have decided to block, and are weighing whether to appeal to executives or seek congressional legislation.
The new privacy features, announced two weeks ago by the California-based companies, will stymie investigations into crimes ranging from drug dealing to terrorism, law enforcement officials said.
“This is a very bad idea,” said Cathy Lanier, chief of the Washington Metropolitan Police Department, in an interview. Smartphone communication is “going to be the preferred method of the pedophile and the criminal. We are going to lose a lot of investigative opportunities.”
The dispute is the latest flare-up that pits the federal government against the nation’s leading technology companies since National Security Agency contractor Edward Snowden disclosed last year the extent of U.S. snooping on phone and Internet communications -- and how companies cooperated.
U.S. Justice Department and FBI officials are trying to understand how the new Apple and Google Android systems work and how the companies could change the encryption to make it accessible when court ordered. Their requests to the companies may include letters, personal appeals or congressional legislation, said a federal law official who requested anonymity to discuss the sensitive issue.
NSA Spying
Beyond lobbying the companies, there is little law enforcement can do without congressional action. Technology companies have stepped up efforts to shield customer data from hackers -- and the government -- after the NSA spy revelations and the recent theft of celebrity nude photos from Apple’s iCloud service.
“These companies are trying to build products that people want to use,” said Carl Howe, a mobility analyst with 451 Research in Boston. “They want to provide that feeling of privacy. Otherwise, people won’t use them.”
Apple described the new measures on Sept. 17 on its website, noting that it can no longer bypass customers’ passcodes and “therefore cannot access this data.” Apple has in the past cooperated with court orders and unlocked phones for law enforcement or provided data from its systems. Apple’s message said in most cases law enforcement doesn’t ask for content such as e-mails, photos or data stored on its iCloud or iTunes accounts.
Technical Feasibility
“It’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running” the latest version of the company’s operating system, iOS 8, the Cupertino, California-based company said.
Evidence from mobile devices has provided critical help in solving crimes ranging from homicides to drug trafficking. Just as most people spend time on smartphones, so do criminals.
Investigators routinely recover from the devices videos of crimes in progress, photos of drug gang members flashing weapons, text exchanges between conspirators, and child pornography.
Federal Bureau of Investigation Director James Comey entered the debate last week, telling reporters that he opposed the companies’ decision. He said the FBI was working to get them to change the policies.
“What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law,” Comey said.
‘Fundamental Tension’
Kristin Huguet, a spokeswoman for Apple, and Christopher Katsaros, a spokesman for Mountain View, California-based Google, declined to comment on the efforts by federal officials.
“This is a fundamental tension,” Howe said. The “balance between how much privacy you’re allowed to have and how many rights the government has” is a question that has continued historically in the U.S., he said.
A half-dozen police and federal officials interviewed said that Apple, in particular, was taking an aggressive posture on the issue.
Law enforcement officials emphasized that they get court orders, and that they aren’t seeking to randomly root through phones. They said they were unsure whether the same encryption protocols would make it impossible to get data stored in cloud-based servers operated by the companies.
Drug Investigations
James Soiles, a deputy chief of operations at the Drug Enforcement Administration, said the stakes in resolving the dispute are high.
“It’s a significant issue for law enforcement,” Soiles said. “As long as we are doing it with court orders, there shouldn’t be any reason to keep us from it. We want to attack command-and-control structures of drug organizations, and to do that we have to be able to exploit their communication devices.”
Andrew Weissmann, the top lawyer at the FBI from 2011 through 2013, said the bureau was especially concerned that criminals could soon “go dark” with the aid of encryption.
Google and Apple faced a choice, Weissmann said: Creating vault-like systems that nobody could penetrate or ones that were less-secure and would permit authorities to investigate crimes.
‘Balancing Act’
“They have created a system that is a free-for-all for criminals,” said Weissmann, a law professor at New York University. “It’s the wrong balancing act. Having court-ordered access to telephones is essential to thwart criminal acts and terrorist acts.”
Weissmann said there was little the Justice Department could do to stop the emerging policies. The companies are permitted to have encryption systems. The only way to ensure law enforcement access is for Congress to pass legislation, he said.
Following the Snowden revelations over the National Security Agency’s data collection, Google, Apple and other tech giants in January got permission to disclose more about government orders for customer data. Microsoft Corp. (MSFT), Yahoo! Inc. (YHOO) and Facebook Inc. (FB), had filed motions with the secret court that oversees spying under the Foreign Intelligence Surveillance Act asking to be able to publish details.
Some tech companies, including Google and Facebook, are pushing for more help with disclosures. That includes support of legislation called the USA FREEDOM Act, which would allow the search-engine provider to be more clear about the volume, scope and type of national security demands the company receives.
To contact the reporter on this story: Del Quentin Wilber in Washington at dwilber@bloomberg.net
To contact the editors responsible for this story: Steven Komarow at skomarow1@bloomberg.net Justin Blum
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