FBI Director James B. Comey sharply criticized Apple and Google on Thursday for developing forms of smartphone encryption so secure that law enforcement officials cannot easily gain access to information stored on the devices — even when they have valid search warrants.
Holder said quick access to phone data can help law enforcement officers find and protect victims, such as those targeted by kidnappers and sexual predators.
These reactions from law enforcement officials are excellent endorsements for communication devices if you value privacy and the rule of law over expedience. Arguing for encryption or security that is easier to break is reprehensible and indefensible. For the authoritarian among us, consider this; open doors let anyone in, not just “the proper authorities”. Would you still feel okay about putting in back doors or deliberately weak encryption if a foreign power can use it to spy on Americans or perform corporate espionage?
Considering the extremely lenient approach both the Bush and Obama administrations have taken to overly-broad warrantless searches, the phrase, “even when they have valid search warrants,” is a telling note, albeit one implied by the authors of the Washington Post article and not directly quoted from FBI director, Comey.
Searching an encrypted phone is effectively no different from searching a locked safe or strongbox. Under existing laws and precedents, there must be a warrant that allows the search of the locked container and specifies what they expect to find in it. The container is itself considered property and in principle should not be damaged or destroyed in the search. According to the somewhat ambiguous case law so far, you may not be compelled to supply a combination to a safe or password to a computer that could lead to incriminating evidence.
(As far as I can tell biometric locks, like Touch ID on recent iPhones, are an even more ambiguous case than passwords. Your finger might be regarded as a “key” and you could be compelled to provide access to your finger in order to unlock your phone. That will have to be tested in the courts, I think. For the meantime, if you’re paranoid — or a criminal — you should probably not use Touch ID, and instead have a good passcode.)
People are becoming more cognizant of their behavior with regard to technology and are taking steps to bring it more into line with their “meat space” lives. Up to now, we’ve been sending postcards (email) with our return addresses written on them by effectively sticking them up on a public board (the unencrypted internet) for the next passer-by to deliver to its destination, trusting that no one will read the contents en route or backtrack us to our home address.
Using encryption for email is like putting a letter in an envelope. Locking your phone with a password is like keeping your private documents in a safe.
Now, law enforcement officials are complaining that it’s too hard to catch criminals when people lock their doors so that police can’t enter private homes freely when the owners are not present, use envelopes so no one can read private mail without having to tamper with it, and don’t use party lines so that no one else can listen in on their telephone conversations without a direct effort to do so. In short, law enforcement is losing the easy access to a great deal of information that people were in many cases unaware was being shared very publicly.
To those who argue that we should give up an expectation of privacy and abrogate some of our rights in order to make it easier to find and prosecute criminals, I reply with a quotation:
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” - Benjamin Franklin