In-Box: Cellphone encryption

March 9, 2016

To the editor:

Somewhere in America this week, a young woman will turn up missing. Panicked parents will call the police, AMBER alerts will be issued, and local businesses will post pictures of the child imploring the public to help. But the one piece of evidence that may contain a treasure trove of information about what has happened to this girl, namely her smartphone, sits useless on her dresser because law enforcement cannot access its data. Emails, text messages, voice messages, photos and other data, all of which could lead to her location and her abductor, are fully encrypted simply so Apple and Google can increase their enormous profits by advertising enticing claims of privacy. What’s more, given the current encryption policies of Apple and Google, think of the expenses they avoid, ergo further increased profits, by not having to comply with law enforcement efforts meant to keep our nation and communities safe.

And law enforcement’s frustration doesn’t end with just abduction cases. Sex traffickers can now feel free to communicate with others as they peddle slavery. Drug dealers no longer need to worry about their plans to sell dope, as long as they use their phones. Child pornographers can now download their vile, disgusting photos and movies while telling their low-life customers to use Apple or Google products. And what happens when the American military captures or kills the next Osama bin Laden, locates his phone and acquires … nothing. This is despicable!

And never mind the Osama bin Ladens of the world, we have terrorists organizing against us while living here amongst us. Take the recent events that took place in San Bernardino, California, back on Dec. 2. Through the course of that investigation we have now learned that law enforcement’s efforts to trace the shooters’ connections and activities leading up to and during that terrible tragedy have been crippled on account of cellphone encryption. In fact, court proceedings continued on Feb. 26 wherein the FBI asked a federal court to issue an order to Apple requiring it to provide the FBI with access to one of the known terrorist’s cellphones. What once was a valuable tool in fighting, solving and preventing future crime is no longer available to law enforcement, and it has made our country and our communities less safe. It will only get worse unless something is done now to stop it. In addition to cellphone encryption, we are now seeing mobile apps like Wickr for texting, Mailvelope for email, and Signal which encrypts both voice and text communications. While Apple, Google and the developers of these apps advertise their products for sale with claims of protecting one’s privacy, the only thing they’re really protecting are criminals. And while all the Apples and Googles rake in the profits, what will be the cost to the safety and security of our society?

Closer to home, I can recount dozens of cases where the use of cellphone data was absolutely critical to the successful prosecution of murderers, child molesters, child pornographers, rapists, drug dealers, thieves, and the list could go on. Without the ability to access the cellphones used by these criminals in the commission of their crimes, these cases may have gone unsolved or, worse yet, the person known to be responsible would not have been held accountable – in either instance though, justice would not have been done. The American criminal justice system, which operates according to the Rule of Law, is specifically designed to deal with the concerns of privacy interests while balancing the needs of law enforcement in the execution of its duties to serve and protect.

While prosecutors’ efforts in filing motions seeking court orders to the Apples and Googles of the world to allow law enforcement access to this critical data are underway, this could all be resolved if Congress would step in and take control of this dangerous situation. Congress can stop this outrageousness tomorrow by its inherent powers under the Commerce Clause. The false argument about privacy rights emanating from the far left and the far right ignores the fact that no phone or other device can be accessed by law enforcement absent a search warrant issued upon probable cause assessed by a neutral magistrate. This isn’t about privacy, and it shouldn’t be about profits. It’s about the safety of America. It’s about the safety of our communities. Law enforcement, under the watchful eye of prosecutors and judges and tested by criminal defense attorneys, should have the tools they need to track down the murderers and associate their accomplices; intervene in advance of the drug deal scheduled to take place at the neighborhood playground; identify the pedophiles victimizing and stealing the innocence of our children; and swiftly solve the child abduction case in order to safely return the young woman to her family. The time to act is now.•

Very truly yours,
Todd J. Meyer
Prosecuting attorney, Boone County