In today’s digital world, how much consumer protection is too much when it comes to personal devices? The F.B.I. and technology companies are coming down on very different sides of the debate.
Companies like Google and Apple now provide a software that allows consumers to encrypt data on their cellphones with codes even the companies cannot crack. Apple’s iPhone 6 encrypts user’s emails, photos and contacts based on an incredibly complex mathematical algorithm. The algorithm uses a code that is created by the cellphone’s user and will remain unknown even to Apple. The practical result of this encryption method is that if a law enforcement agency issues Apple a court order demanding the contents of an individual’s iPhone 6, Apple would essentially be handing over “gibberish” and investigators will have to break the code or obtain the code from the individual before it can access any of the data stored on the phone. An Apple technical guide speculated it could take authorities “more than 5 1/2 years to try all combinations of a six-character alphanumerical passcode with lowercase letters and numbers.” While computer security experts question the 5 1/2 year figure, no one disputes that the encryption would slow down any efforts by law enforcement to access data stored on the phone.
Technology companies believe the new encryption software on personal devices is simply a response to concerns voiced by many consumers in the post-Snowden era. Edward J. Snowden was the former government contractor who leaked thousands of documents detailing, among other things, government programs that collect electronic data, seemingly indiscriminately. The F.B.I verbalized their concerns over the latest software earlier this month. The F.B.I.’s director, James B. Comey, fears encrypted phones will greatly hinder investigations involving phones that are taken from suspects, recovered from a crime scene, or unfolding situations where time is of the essence. Intelligence agencies fear terrorists will make use of the new software and be able to avoid surveillance. Officials inside the intelligence agencies say they fear this is only the first of many new technologies designed to defeat both the N.S.A and any court order to turn over information to their agencies.
According to the F.B.I. director, the problem with the new encryption technology is that it is rapidly outpacing the laws that are legitimately designed to help authorities locate suspects. The law currently governing what kind of data the government can access is the Communications and Assistance for Law Enforcement Act enacted by Congress in 1994. The Act requires telecommunications companies to build a system that allows law enforcement to carry out a wiretap order if necessary. While the new encryption software makes it more difficult to access stored data, it does not interfere with law enforcement’s ability to use wiretaps to listen in on real time conversations. Law enforcement agencies point out that data stored on phones can be just as crucial to an investigation as listening to phone calls, and in some cases, such as kidnappings, more so. They believe it is necessary for the regulations and laws to reflect the changing modes of communication.
In December 2013, an N.S.A. advisory committee created after the Snowden disclosures released a 308-page report with recommendations on data security that seems to be at odds with the director’s recent statements. The committee recommended that the government “not in any way subvert, undermine, weaken or make vulnerable generally available commercial software” and it urged the government to increase the use of encryption while encouraging U.S. companies to do the same. Despite the committee’s recommendation, the director stated consumer companies will likely force Congress to adopt new regulations and laws that will force companies to create ways for their devices to be unlocked by law enforcement agencies. Technology companies are quick to point out that if they are forced to create ways for law enforcement to unblock their devices then what about criminal hackers or agents of the Chinese or Russian governments?
Despite the F.B.I.’s concerns, encryption remains a key business objective for technology companies, and without any clear policy form the White House, it is likely that these companies will continue to develop and expand software in response to consumer privacy concerns.