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Prosecutors Op-Ed: Phone Encryption Blocks Justice 392

Posted by Soulskill from the completely-unbiased-source dept.
New submitter DaDaDaaaaa writes: The New York Times features a joint op-ed piece by prosecutors from Manhattan, Paris, London and Spain, in which they decry the default use by Apple and Google of full disk encryption in their latest smartphone OSes (iOS 8 and Android Lollipop, respectively). They talk about the murder scene of a father of six, where an iPhone 6 and a Samsung Galaxy S6 Edge were found.

"An Illinois state judge issued a warrant ordering Apple and Google to unlock the phones and share with authorities any data therein that could potentially solve the murder. Apple and Google replied, in essence, that they could not — because they did not know the user's passcode. The homicide remains unsolved. The killer remains at large."

They make a case for lawmakers to force Apple and Google to include backdoors into their smartphone operating systems. One has to wonder about the legitimate uses of full disk encryption, which can protect good people from harm, and them from having their privacy needlessly intruded upon.
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Prosecutors Op-Ed: Phone Encryption Blocks Justice More

Prosecutors Op-Ed: Phone Encryption Blocks Justice

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  • It's the base assumption that its invalid (Score:5, Interesting)

    by Art Popp ( 29075 ) * on Tuesday August 11, 2015 @02:15PM (#50295675)

    That if they knew what was on the phone they'd be able to nab the murderer.
    You can leave a trail of blood all the way back to your Rockingham estate, and still get away with it.

    There's significant (and mixed) legal precedent regarding someone being ordered to give a password that will decrypt data that will incriminate them. If the courts would not be entitled to this password from the phone's owner (due to Fifth amendment protections) then it's not quite just to claim they have a right to it prior to his/her capture.

    This article seemed like a balanced view on the subject:
    http://politicsandpolicy.org/a... [politicsandpolicy.org]

    • Re:It's the base assumption that its invalid (Score:5, Insightful)

      by IamTheRealMike ( 537420 ) on Tuesday August 11, 2015 @02:45PM (#50295991)

      It's not just the assumptions that are invalid. Some of the statements presented as fact are also invalid.

      For example:

      For our investigators to conduct searches in any of our jurisdictions, a local judge or commissioner must decide whether good cause exists.

      The UK routinely issues warrants rubber-stamped by the Home Secretary, not a judge. I believe in the span of just one year Theresa May is supposed to have issued several THOUSAND warrants, so obviously it's not possible that each one was actually reviewed.

      we are not talking about violating civil liberties — we are talking about the ability to unlock phones pursuant to lawful, transparent judicial orders

      They're talking to companies that have been repeatedly served with "lawful judicial orders" from places like the FISA Court. Guess what? Google can't pick and choose which court orders it acts on depending on the quality of that court. It's all or nothing. If these prosecutors are pissed off that they suddenly lost access to people's smartphones they need to take a long hard look at what other sections of government have been doing to trigger this.

      The new Apple encryption would not have prevented the N.S.A.’s mass collection of phone-call data or the interception of telecommunications, as revealed by Mr. Snowden

      This statement may be technically true, but again, it's a useless thing to say. Whilst this article seems to focus on full disk encryption, other very similar op-eds have focused on the end to end encryption provided by iMessage and WhatsApp. The strategy of these products is obvious: encrypt everything. If governments can snarf it off the wire, they will, so encrypt that. And then if they are rejected at the wire but can get it physically from the device, they will, so encrypt that too.

      By attacking one piece of the strategy in isolation whilst ignoring the other components, of course they can claim it'd not solve the problem. But so what?

      They're writing the wrong op-ed. Instead of getting angry at tech companies for reacting to colossal abuses of power, they should be publicly calling for the heads of Keith Alexander and his friends. It's because some government agencies pissed in the well that the water is now polluted for all of them, even the "good ones" as they see themselves. If these agencies were severely crippled or abolished, the argument for rethinking features like smartphone FDE would suddenly get a lot stronger. But they aren't asking for that because they are just too weak to endanger their own careers by attacking politicians sacred cows.

      • The reason Apple is going with full encryption is because the NSA abused their powers. There are consequences for your actions. The NSA is therefore to blame for the rise of effective security measures, just like the drug companies are to blame for the rise of anti-biotic resistance caused by giving farm animals anti-biotics.

    • It Doesn't Matter (Score:5, Insightful)

      by Jaime2 ( 824950 ) on Tuesday August 11, 2015 @02:53PM (#50296065)
      Even if he had proof that the murderer would be caught if they got into the phone, it wouldn't change anything. We could also prove that the murderer would be caught if every human was issued a body-cam and the penalty for not maintaining it properly was death. Just because something catches murderers doesn't mean it should be done.

      • Even if he had proof that the murderer would be caught if they got into the phone, it wouldn't change anything. We could also prove that the murderer would be caught if every human was issued a body-cam and the penalty for not maintaining it properly was death. Just because something catches murderers doesn't mean it should be done.

        There's also a good chance that there is nothing on these phones leading to the murderer. And there is a good chance that _if_ Apple and Google could decrypt the data, and it was known (which it would be after the first murder conviction), then people wouldn't leave incriminating evidence on their phones.

        • Re:It Doesn't Matter (Score:5, Funny)

          by 93 Escort Wagon ( 326346 ) on Wednesday August 12, 2015 @01:08AM (#50299187)

          There's also a good chance that there is nothing on these phones leading to the murderer.

          You're ignoring the Muderers' Code of Conduct (MCC).

          The MCC obliges someone about to commit murder to pose for a picture taken by the intended victim, if said victim requests it prior to completion of the murder.

    • Re: (Score:2)

      by ne0n ( 884282 )
      These idiots are ignoring the mountains of evidence that it's mainly lawyers who're guilty of blocking justice.

      I wonder why they're so keen to point the finger at another party? Hmm.
    • There are two key assumptions here, and both are flawed:
      1. Murders keep that ONE KEY piece of evidence on their phones. Seems specious at best. Despite what folks see on CSI: The Unnecessary Spinoff, police work is actually hard. Cases don't get solved in 60 minutes including commercial breaks. And there is rarely ONE KEY piece of evidence that makes or breaks a case, and it's even more rarely that it's stored on a phone, and even more rare that the phone happens to be encrypted. This is little more than u
    • That's not even the point. Maybe encryption does hinder justice in some cases, and maybe having a back door will help solve some important cases, or maybe it won't. None of that matters. What matters is that requiring a back door into our private stuff violates an important basic right, and puts our private data at serious risk, not just from unauthorised or unwarranted government access (bored cops taking a peek...), but also from 3rd parties and hackers gaining access.

      It doesn't matter if encryption hi

  • Phones aren't used in a vacuum (Score:5, Insightful)

    by TWX ( 665546 ) on Tuesday August 11, 2015 @02:19PM (#50295713)
    Phones are used to communicate. How about identifying the carrier, going to the carrier with a subpoena for the ownership information and communications logs, and go from there?

    • Re: (Score:3, Insightful)

      by Henning Rogge ( 4024165 )
      But then they would have no reason to complain about the encryption... which is the whole point of the issue.

    • They probably did. And having subsequently got the info they wanted and still failed to solve the case, they decided to blame tech companies instead of themselves. After all, what if the answer was conveniently waiting for them behind the lock screen?

      Of course, the phones might have contained nothing of interest at all. They don't know. But it's so easy to blame someone else ....

      • what if the answer was conveniently waiting for them behind the lock screen?

        Until they get through the lock screen, the evidence both exists and doesn't exist on the phone: Schrodinger's Evidence.

  • Evidence (Score:5, Insightful)

    by Anonymous Coward on Tuesday August 11, 2015 @02:20PM (#50295725)

    There is no proof there is any evidence on the phones.

    HOWEVER, there is a ton of evidence that authorities will abuse their legal authority and spy on innocent people.

    Whats next, getting rid of trials because the law knows that some guilty people have been found innocent, and the few innocent who have been found guilt are just collateral damage.

  • How did they solve crimes before Smart phones?? (Score:5, Insightful)

    by dav1dc ( 2662425 ) on Tuesday August 11, 2015 @02:22PM (#50295755)

    I find it hard to believe that invasive access to a smart phone is the only way to solve a crime, murder 1 or otherwise.

    • Re: (Score:2)

      by burni2 ( 1643061 )

      Simply by doing good -old- police work:

      #option1
      They got a "confession" hand written without spelling errors from an illiterate black guy. The problem with missing evidence and nagging civil rights lawyers solved itself after 12-20yrs. on death row.

      #option2:
      They looked the poor white guy in the eyes and stated in the court that his eyes confessed the crime - and the jury sentencend him to death. Simply a bullet proof case.

      Btw. these ramblings might sound like jokes from a fuzzy kafkaesk film like "Brazil" bu

    • Re:How did they solve crimes before Smart phones?? (Score:5, Insightful)

      by gstoddart ( 321705 ) on Tuesday August 11, 2015 @02:36PM (#50295893) Homepage

      It's like "won't someone think of the children" or "because terrorism".

      They want to present a bogeyman argument which says "if we can't spy on everything people do there will be unsolved murders, child porn, and terrorists" and make it out like only people in favor of those things would oppose outlawing encrypted phones.

      Any US prosecutor who wants that is a clueless idiot with no concept of the 4th amendment, and should be disbarred and charged criminally -- or simply shot.

      Because he doesn't give a damn about the law.

      Governments and law enforcement want a police/surveillance state so they can do anything they want. But it's time to tell them we don't trust them, and don't wish to live in that kind of world.

      This shit is fundamentally incompatible with a free society.

      Give me your fucking papers, comrade.

    • Don't you know that prior to 2007, all capitol crimes went unpunished, because it was impossible to determine who had committed such? Then with the universal data gathering tool, created singularly by Steven Jobs, of Cupertino, California, no capitol crime went unavenged. That is until Tim Cook reversed this capability with encryption.

      Get your facts straight people!

    • I immediately thought the corollary: how incompetent are you if you can't stage a meaningful investigation without accessing the contents of an endpoint storage device? You can certainly pull records of who texted and called who how frequently and for how long from the phone company. You can establish a list of contacts, draw relationship maps, and perform legwork investigation. You know, walk around talking to people.

      It just says to me they don't care about their jobs. We have investigators looking

  • It seems I got a valid reason to buy a newer phone now then. :)

  • Freedom sometimes hinders justice: deal with it (Score:5, Insightful)

    by ravenscar ( 1662985 ) on Tuesday August 11, 2015 @02:26PM (#50295791)

    Lots of things "hinder" justice. The fact that we don't all wear trackers that inform the government of where we are at all times hinders justice. The fact that all financial transactions aren't conducted electronically hinders justice. The fact I can go wherever I want without first obtaining permission from the government hinders justice.

    The fact that I don't have to submit to those intrusions is part of my freedom. I appreciate my freedom and am willing to forgo or more efficient justice system in order to maintain my freedom - especially given the fact that once freedom is sufficiently curtailed those doing the curtailing tend to lose their concern for justice.

    • Re: (Score:2)

      by nyet ( 19118 )

      But in the absence of cooperation from Apple and Google, regulators and lawmakers in our nations must now find an appropriate balance between the marginal benefits of full-disk encryption and the need for local law enforcement to solve and prosecute crimes. The safety of our communities depends on it.

      Ah, just like the marginal benefits of a free society. Why bother with any components of a free society if all of them endanger the "safety of our communities"?

      I mean, the benefits are just so marginal.

    • 100% agree. If the six murder case isn't ever solved, that would be sad - but freedom has a price tag, and this is a typical payment.

      Side thought: In the past, a more religious society that believed in some deity could take a little solace in the belief that said deity would punish the "sinners" in the next life (i.e. "Let God sort it out").

      As our societies moves towards a more secular view, however, that spiritual catharsis is lost. Only lingering feelings of bitterness, anger and injustice - no ultimate c

  • One has to wonder about the legitimate uses of full disk encryption, which can protect good people from harm, and them from having their privacy needlessly intruded upon.

    No one doesn't. There's nothing to wonder about, at least in the US. The fourth amendment is pretty damn clear.

    • And yet idiot judges have decided that your personal electronics containing all your personal files and data aren't covered by the 4th amendment because ... well, I have no idea why actually.

      The amendment is pretty clear. The case law, not so much.

      Face it, America (and the rest of the world) are slowing having rights taken away .. usually by governments who claim they have to take away our freedoms to protect our freedoms.

      The fascists are slowly winning, an deciding free means whatever the fuck they tell u

    • Re:What part of the 4th Amendment (Score:4, Informative)

      by OhPlz ( 168413 ) on Tuesday August 11, 2015 @03:09PM (#50296185)

      Blame Mothers Against Drunk Drivers. DUI checkpoints absolutely violate the 4th and the dissenting opinions state as much, yet they're allowed. In my own state, the court had decided against them until years later, they decided to allow them. They all but admit that they violate our rights but because it's safety, they let it slide. If laws mean nothing to the courts, then it's up to the citizenry to defend themselves against a lawless government.

  • So, no murder cases have been solved so far? (Score:3)

    by Imazalil ( 553163 ) on Tuesday August 11, 2015 @02:31PM (#50295849)

    Wow, just imagine a world in which police are able to solve murder cases. Truly, this is an idea who's time has come. It will change the world! No longer will police simply be relegated to issuing parting and speeding tickets. /s

    As TWX states above, they can go to the carrier and get call/location/sms logs. Do they think that the killer left them a video note on the phone?

  • But still I feel the need to say it. “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

    • Re: (Score:2)

      by Sowelu ( 713889 )

      I've always wondered about the phrasing of that last part...deserve neither liberty nor safety. With the subtlety in writing of the day, it sounds more like a threat than anything else. "Benjamin Franklin will lock you up, or maybe just kill you in your sleep."

  • Blame the NSA (Score:5, Insightful)

    by nine-times ( 778537 ) <nine.times@gmail.com> on Tuesday August 11, 2015 @02:35PM (#50295879) Homepage

    I think I might have some small sympathy for the idea that law enforcement should have some recourse to access the contents of a cell phone, provided they first get a warrant. However, in light of what we've learned about the NSA spying, I don't see how anyone could trust that such a back door won't be abused. Really, building any kind of backdoor is a serious security risk, since any backdoor that the "good guys" can use also carries a risk that the "bad guys" will discover it. But beyond all the normal security risks, we now know that our this kind of access has been abused by various forms of law enforcement in ways that are ethically questionable if not illegal.

    So... sorry. You no longer deserve the benefit of the doubt. If you wanted our good faith, you shouldn't have secretly abused the system.

    • Re: (Score:2)

      by swb ( 14022 )

      To be honest with you, I trust the NSA MORE than a trust any local cop or prosecutor.

      Maybe that's misplaced, but I have the gut feeling that the NSA has bigger fish to fry than me. World leaders to spy on, Islamists to locate, global events to manipulate. Whatever shenanigans I might get up, so long as they don't rate on any national security stage, the NSA doesn't care about. Sure, there's a vanishingly small percentage chance that my phone might have been within 100' of some douchebag and I might get h

    • Re: (Score:2)

      by PuckSR ( 1073464 )

      I disagree with this general idea that the police can go fuck themselves because the NSA were a bunch of assholes. The NSA isn't even a law enforcement organization, it is a code-breaking espionage organization. Do you similarly ignore the FAA rules about smoking on an airplanes because the EPA caused a chemical spill?

      That being said, I have no sympathy for the police position. They obviously want all the information they can possibly access. It makes it easier to do their job. Everyone wants their job to b

  • Same logic says fingerprints and DNA for all (Score:5, Insightful)

    by gurps_npc ( 621217 ) on Tuesday August 11, 2015 @02:37PM (#50295903) Homepage
    The lack of a state record of every single fingerprint, DNA sample, iris picture, etc. foil more crimes than the lack of a back door on secure phones. Similarly, the lack of cameras inside people's homes foils more crimes than the proposed phone back door.

    Security and privacy are opposites. The more we have of one, the less we have of the other. Any mother tempted to look inside their teenager's diary knows this.

    The question is not and never has been, could we obtain more security by giving up some privacy.

    Instead the question is, what issues are so substantial that an invasion of privacy is required - and how large an invasion would that be.

    The proposed invasion of privacy - a back door in every single phones - where like it or not, people keep nude photos, sexy text messages, GPS data, contact information, etc. etc. is HUGE. The proposed security enhancement is minor.

  • Not to discount murder, but people are going to murder each other whether or not police are permitted to access decrypted data on phones. Murdering are civil rights and privacy will be a lot harder with encryption.

  • Meanwhile (Score:3)

    by 0123456 ( 636235 ) on Tuesday August 11, 2015 @02:37PM (#50295915)

    Around the world, tech company executives rub their hands in glee at the thought of all the profits coming there way after the US government destroy any remaining trust in the US industry.

  • I prepared some bullet points for you:

    a.) The right to remain silent ..
    b.) An execelent lawyer ..
    c.) An accused non-black person ..
    d.) The right not to be tortured ..
    e.) A non-coloured or coloured rich person ..
    f.) The right for a due proccess ..

    Now who wants to play attorney general bingo and wants to degrade freedom and civil rights a lot more?

    Btw. for option e. I think about an ex-football player & comedy actor - there is another chance for bingo .. it has something to do with professional athelete a

  • What was it that William Blackstone said? "It is better that ten innocent persons suffer than that one guilty person escape".

    So, yeah, go ahead. Give up some essential liberty in exchange for temporary safety. Everyone throughout history has always said that that is a good idea.

    Don't want to know any of your own history? That's okay. Like some guy on TV said, "Those who cannot learn from history are just too awesome for it, so that's okay."

  • Comment removed based on user account deletion

  • Comment removed (Score:4, Interesting)

    by account_deleted ( 4530225 ) on Tuesday August 11, 2015 @02:47PM (#50296011)
    Comment removed based on user account deletion

  • Seriously. Here is a little history lesson for the august prosecutors from Manhattan, Paris, London and Spain

    No matter where you set the bar, some cases will remain unsolved.

    There is no procedure, no matter how heinous or how intrusive, that couldn't be justified on these terms. Come up with other reasons for what you want; this one is no real reason at all.

  • I have an even better idea (Score:4, Insightful)

    by TsuruchiBrian ( 2731979 ) on Tuesday August 11, 2015 @03:02PM (#50296133)

    "An Illinois state judge issued a warrant ordering Apple and Google to unlock the phones and share with authorities any data therein that could potentially solve the murder. Apple and Google replied, in essence, that they could not — because they did not know the user's passcode. The homicide remains unsolved. The killer remains at large."

    They could probably solve even more cases if they had the ability to remotely decrypt and access the contents of everyone's cell phone. They could solve *even more* cases if they were able to search anyone's property without a warrant.

    What if we just put everyone in prison. It'll be pretty hard for anyone to commit crimes from inside a jail cell.

    I suppose it's easy for some people to fall into the mindset that crime prevention is the *only* thing that matters.

  • They don't appear to have made a case *why* decrypting cellphones would help solve the crime. Who did they belong to? If they're owned by victim its unlikely they include much of value or they'd be smashed (and merely taking them to the home router while charged will probably backup to the cloud, where a warrant will help you). Otherwise, go talk to the carrier and get a warrant to find the devices owners. Heck, I imagine Apple & Google could determine which cloud accounts are linked to the device.
  • Comment removed based on user account deletion

  • Prosecutors, let's make a deal (Score:3)

    by Opportunist ( 166417 ) on Tuesday August 11, 2015 @04:17PM (#50296777)

    We'll do that. Once you install a door into your home that has no more than a simple tumbler lock with police having the key to it and you having no provision whatsoever to monitor when this door opens. Also any and all security systems you might have have to turn off as soon as this door is opened. The police may of course only use that key with a warrant. No worries about this.

    Once you've done that, we can talk. And if you say "hey, that's stupid, anyone with a hint of a burglary skill could break the lock and my home would be wide open". Yeaaaaaaah, you got it.

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