By Devlin Barrett And Danny Yadron
Moves by Apple Inc. and Google Inc. to put some smartphone data
out of the reach of police and the courts are raising alarms inside
U.S. law-enforcement agencies, current and former officials
say.
Several officials in Washington said they were bracing for a
confrontation with Silicon Valley on the issue, the latest fallout
from the revelations by former National Security Agency contractor
Edward Snowden about government surveillance.
Last week, Apple announced that its new operating system for
phones would prevent law enforcement and phone thieves from
retrieving data stored on a locked phone, such as photos, videos
and contacts. A day later, Google reiterated that the next version
of its Android mobile-operating system will make it similarly
difficult for police or Google to extract such data from suspects'
phones.
It's not just a feature--it's also a marketing pitch. "It's not
technically feasible for us to respond to government warrants for
the extraction of this data," Apple's website says.
Apple acknowledged that it could still hand such data over to
law enforcement that users back up on the company's iCloud servers.
And police can access some iPhone data without the help of Apple,
because phone companies keep call logs and Apple doesn't control
data from third-party apps.
In its announcement, Apple also sought to distinguish itself as
more protective of customers' privacy than its competitors are,
saying it doesn't use its customers' data to sell or target ads.
Google didn't comment on the matter.
The moves highlight the continuing challenge for law enforcement
in responding to new technologies. Other innovations, such as
texting, instant messaging and video-game chats, created hurdles to
monitoring communication, though law-enforcement agencies in almost
every instance eventually found ways to overcome them.
But this time, two of the best-known U.S. companies are
advertising that their phone systems may be able to beat a court
order, and putting the technology in the hands of tens of millions
of people.
"All of a sudden, a for-profit company has decided, 'We're going
to step in and be the first line of defense for customers against
their own government,' " said Brian Pascal, who has worked on
privacy issues at Palantir Technologies Inc. and International
Business Machines Corp.
Apple previously ruffled Justice Department feathers by
encrypting its iMessage texting and FaceTime calling services,
making them more difficult for police to intercept. Apple says even
it cannot decipher the communications.
Now, Apple said its new iOS 8 mobile-operating system will by
default encrypt certain data on the phone if users set a passcode.
That will make the data undecipherable, even to police. The new
operating system works with any iPhone released since late 2011,
starting with the 4s model. About one-quarter of Americans owned an
iPhone as of May.
In the past, investigators with court orders have been able to
send harvested iPhones to Apple's Cupertino, Calif., headquarters,
where engineers could extract certain data.
Last week's announcements surprised senior federal
law-enforcement officials, some of whom described it as the most
alarming consequence to date of the frayed relationship between the
federal government and the tech industry since the Snowden
revelations prompted companies to address customers' concerns that
the firms were letting--or helping--the government snoop on their
private information.
Senior U.S. law-enforcement officials are still weighing how
forcefully to respond, according to several people involved in the
discussions, and debating how directly they want to challenge Apple
and Google.
One Justice Department official said that if the new systems
work as advertised, they will make it harder, if not impossible, to
solve some cases. Another said the companies have promised
customers "the equivalent of a house that can't be searched, or a
car trunk that could never be opened."
Andrew Weissmann, a former Federal Bureau of Investigation
general counsel, called Apple's announcement outrageous, because
even a judge's decision that there is probable cause to suspect a
crime has been committed won't get Apple to help retrieve potential
evidence. Apple is "announcing to criminals, 'use this,' " he said.
"You could have people who are defrauded, threatened, or even at
the extreme, terrorists using it."
The level of privacy described by Apple and Google is "wonderful
until it's your kid who is kidnapped and being abused, and because
of the technology, we can't get to them," said Ronald Hosko, who
left the FBI earlier this year as the head of its
criminal-investigations division. "Who's going to get lost because
of this, and we're not going to crack the case?"
Even as officials debated how to respond to the change, a
high-profile missing person case pointed to the potential
implications of the new technology. Last week, authorities issued
search warrants for the apartment, car and phone of a person of
interest in the disappearance of University of Virginia student
Hannah Graham, a case that remains unsolved. Under the new
operating system announced by Apple, a similar phone search in the
future might be fruitless.
Apple and Google declined to comment. An Apple spokeswoman
pointed to the company's new privacy policy and comments Chief
Executive Tim Cook made in a recent interview with Charlie Rose.
"People have a right to privacy," Mr. Cook said. "And I think
that's going to be a very key topic over the next year or so."
One official of a technology-industry association said the
companies are responding to pressure from customers and competition
from foreign companies to offer stronger privacy protections. The
official suggested tech companies would make additional moves if
the federal government doesn't take steps to protect privacy.
The new security offered by Apple and Google is not absolute. In
some cases, police may be able to find ways around Apple's system,
by cracking a phone without the company's help. Experts say no
system is uncrackable.
In addition, a court could try to force a suspect to unlock his
phone, said Orin Kerr, a law professor at George Washington
University. And a suspect could make data vulnerable to
investigators by backing up the files, or linking the phone with a
computer.
Christopher Soghoian, principal technologist with the American
Civil Liberties Union, predicted federal investigators wouldn't be
too hampered by the change, but state and local detectives could
be. "It's not so much a problem for 'Big Brother,' but a problem
for 'Little Brother," he said.
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