COUNTERPOINT: Does public security outweigh private, digital information?
Without access to information, it can be impossible to investigate crimes
By PATRICK O’CARROLL
Last year, three gang rapists in New York City plotted their attacks, contacted their victims, and then boasted about the assault to one another. All of the evidence of this heinous crime was found on their smart phones.
In a separate case, an electronically monitored phone conversation between an incarcerated defendant and a fellow conspirator found the two discussed the need for an iOS8 operating system in order to continue the exchange. The defendant explicitly cited the dispute between the Manhattan district attorney prosecuting his case and the phone manufacturer, Apple, noting the phone’s system could not be decrypted without their assistance and therefore law enforcement would be unable to access his information. “That might be another gift from God,” he said.
Cyrus Vance, the district attorney on this case and many others involving this kind of technological evidence, highlights these two incidents in a report on smart phone encryption and public safety. In an interview following the report release, Vance stated, “If the average criminal at Rikers knows it, the terrorist knows it, the sophisticated cybercriminal knows it. It is only a matter of time before there is an incident where we say, ‘Who gave (Apple CEO) Tim Cook the right to decide whether a parent can find a lost child.”
These sentiments were echoed by the Federal Law Enforcement Officers Association National President, Nathan Catura, following the terrorist attack in San Bernardino last year when the government and Apple were at odds over unlocking the phone of one of the attackers. Catura asserted, “Tim Cook does not get to decide what laws he must comply with. That’s not the American way of justice.”
In this case, the court had issued an order directing Apple to assist in the government’s search of the attacker’s phone by providing reasonable technical assistance to law enforcement agencies so they could access the data on that device, but Apple refused to comply with the order. Federal Law Enforcement Officers Association, along with the Association of Prosecuting Attorneys and the National Sheriffs Association, jointly filed an amicus brief in this case, stating that the position that Apple had taken is a dangerous one. Refusing to provide assistance in cases such as these has far-reaching public safety ramifications. Without access to the information on these devices, it can be difficult, and in some case impossible, for law enforcement to fulfill their obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law. The brief also cautioned that the example Apple was setting by refusing to cooperate with law enforcement could encourage the public to also negate cooperation with our law enforcement officers.
FLEOA is not alone on this front. The International Association of Chiefs of Police recently hosted a Law Enforcement Summit on Going Dark. In the summary information published from the summit, it highlighted the same concerns:
“Ubiquitous access to interconnected mobile devices and other advanced communications systems has transformed how we live, work and communicate, enabling global communication with the touch of a smartphone screen. This expansion of interconnectedness has also provided a new tool of the criminal trade for criminals and created new challenges for law enforcement investigators … new technologies and strategies developed to advance network security are preventing law enforcement and justice agencies from executing lawful court orders to investigate criminal or terrorist incidents or to secure electronic evidence. Clear and sometimes insurmountable barriers to access of electronic evidence have been placed in the way of law enforcement seeking to identify suspects and protect communities from further crime. Those barriers to access include data encryption, outdated legislation, elevated proof requirements, cloud infrastructure, lack of data retention and preservation, and unreliable provider assistance.”
Meanwhile, Apple and Google are profiting from the use of smart phone encryption and privacy as marketing tools, promoting the proliferation of personal information on the same devices. While someone is reading this article, applications on your smart phones are providing vendors with your most personal information. Health and fitness applications are transmitting medical data, newsfeeds are tracking what you are reading and the length of time you spend viewing it and social networks are tracing what you view, who you interact with and what are your personal interests. Businesses routinely purchase this data for marketing purposes. In fact, there are even companies that amass this information, refine it, plot it, map it and use it for fraud, threat and safety predictions. There is no such thing as a free application. You are actually buying the application by continually providing your personal information.
The proliferation of the smart phone is an emerging benefit to our law enforcement. The data housed on these devices can lead to the capture and conviction of dangerous individuals. But it also bears noting that law enforcement is seeking to utilize this new ability without directly accessing individual phones. At 7:56 a.m. on the morning after the Chelsea Bombing in New York City, all smart phones received the following message: Emergency Alert – Wanted – Ahmad Khan Rahami – see media for pic. This was just one example of how the interconnection between advanced communications systems allowed law enforcement to successfully perform the work they are sworn to do: protecting the American public.
Patrick O’Carroll is the executive director for the Federal Law Enforcement Officers Association. He spent 44 years in federal law enforcement in various roles, including his time as the appointed and Senate confirmed Inspector General for the Social Security Administration and as a member of the United States Secret Service.