By Cat Zakrzewski
Law-enforcement officials are running up against a new hurdle in
their investigations: the encrypted smartphone.
Officials say they have been unable to unlock the phones of two
homicide victims in recent months, hindering their ability to learn
whom those victims contacted in their final hours. Even more
common, say prosecutors from New York, Boston and elsewhere, are
locked phones owned by suspects, who refuse to turn over
passcodes.
Manhattan District Attorney Cyrus Vance says his office had 101
iPhones that it couldn't access as of the end of August, the latest
data available.
The disclosures are the latest twist in a continuing dispute
between law-enforcement officials and Apple Inc. and Google Inc.,
after the two tech companies released software last year that
encrypted more data on new smartphones. The clash highlights the
challenge of balancing the privacy of phone users with law
enforcement's ability to solve crimes.
"Law enforcement is already feeling the effects of these
changes," Hillar Moore, the district attorney in Baton Rouge, La.,
wrote to the Senate Judiciary Committee in July. Mr. Moore is
investigating a homicide where the victim's phone is locked. He is
one of 16 prosecutors to send letters to the committee calling for
back doors into encrypted devices for law enforcement.
The comments are significant because, until now, the debate over
encrypted smartphones has been carried by federal officials. But
local police and prosecutors handle the overwhelming share of
crimes in the U.S., and district attorneys say encryption gives bad
guys an edge.
Encrypted phones belonging to victims further complicate the
issue, because some families want investigators to have access to
the phones.
"Even if people are not terribly sympathetic to law-enforcement
arguments, this situation might cause them to think differently,"
said Paul Ohm, a Georgetown University Law Center professor and
former prosecutor.
Last week, Federal Bureau of Investigation Director James Comey
told a Senate hearing that the administration doesn't want Congress
to force companies to rewrite their encryption code. "The
administration is not seeking legislation at this time," White
House National Security Council spokesman Mark Stroh said in a
written statement Monday.
Some independent experts say the handful of cases that have
emerged so far isn't enough to prove that phone encryption has
altered the balance between law enforcement and privacy. In many
cases, they say, investigators can obtain the encrypted information
elsewhere, from telephone companies, or because the data was backed
up on corporate computers.
"It depends on what the success rate is of getting around this
technology," said Orin Kerr, a George Washington Law professor.
Apple encrypted phones by default beginning with iOS 8, the
version of its mobile-operating system released last fall. The
decision came amid public pressure following former
national-security contractor Edward Snowden's revelations of
tech-company cooperation with government surveillance.
With iOS 8, and the newly released iOS 9, Apple says it cannot
unlock a device with a passcode. That means Apple cannot provide
information to the government on users' text messages, photos,
contacts and phone calls that don't go over a telephone network.
Data that isn't backed up elsewhere is accessible only on the
password-protected phone.
"We have the greatest respect for law enforcement and by
following the appropriate legal process, we provide the relevant
information we have available to help," Apple wrote in a statement
to The Wall Street Journal.
Apple Chief Executive Tim Cook is an advocate of encryption.
"Let me be crystal clear: Weakening encryption, or taking it away,
harms good people that are using it for the right reasons," he said
at a conference earlier this year.
Only some phones, such as the Nexus 6 and the Nexus 9, running
Google's Android Lollipop system are encrypted by default. Google
declined to comment about the role of encryption in police
investigations.
Three of the 16 district attorneys who wrote to the Senate--from
Boston, Baton Rouge and Brooklyn--told the Journal they were aware
of cases where encrypted phones had hindered investigations.
Investigators in Manhattan and Cook County in Illinois also have
cases dealing with encrypted phones. Investigators say, however,
they have no way of knowing whether or not the locked phones
contain valuable evidence.
Mr. Moore, of Baton Rouge, thinks there might be important
information on a victim's phone. But he can't access it.
Brittany Mills of Baton Rouge used her iPhone 5s for everything
from sending iMessages to writing a diary, and she didn't own a
computer, her mother said. Ms. Mills, a 28-year-old patient
caregiver, was shot to death at her door in April when she was
eight months pregnant.
Police submitted a device and account information subpoena to
Apple, which responded that it couldn't access anything from the
device because it was running iOS 8.2. Mr. Moore thinks the iCloud
data Apple turned over won't be helpful because the most recent
backup was in February, two months before her death. The records he
obtained of her phone calls yielded nothing.
"When something as horrible as this happens to a person, there
should be no roadblock in the way for law enforcement to get in
there and catch the person as quickly as possible," said Barbara
Mills, Brittany Mills's mother.
Investigators in Evanston, Ill., are equally stumped by the
death of Ray C. Owens, 27. Mr. Owens was found shot to death in
June with two phones police say belonged to him, an encrypted
iPhone 6 and a Samsung Galaxy S6 running Android. A police
spokesman said the Samsung phone is at a forensics lab, where they
are trying to determine if it is encrypted.
The records that police obtained from Apple and service
providers had no useful information, he added. Now the
investigation is at a standstill.
"In the past this would have been easy for us," said Evanston
Police Commander Joseph Dugan. "We would have an avenue for this
information, we'd get a subpoena, obtain a record, further our
investigation."
Barbara Mills is committed to making sure more families don't
have to see cases go unsolved because of phone encryption. "Any
time you have a situation of this magnitude, if you can't depend on
law enforcement, who can you depend on?"
Danny Yadron contributed to this article.
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(END) Dow Jones Newswires
October 12, 2015 19:51 ET (23:51 GMT)
Copyright (c) 2015 Dow Jones & Company, Inc.
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