Two giants of smart phone technology, Apple and Google, have announced that they are stepping up their phone encryption systems, and the FBI is not too pleased about it. This development appears to be in response to the recent air of distrust surrounding mobile phone surveillance. (The Washington Journal of Law, Technology and Arts recently published an article on the constitutionality of the surveillance methods employed by the National Security Agency.) While this new encryption technology may keep the NSA and hackers out of people’s phones, it could also impede the FBI’s ability to investigate crimes using evidence gained from smart phones.
This new kind of encryption makes it much more difficult for governmental agencies—like the FBI or NSA—to access a phone’s protected data. The encryption algorithm on the phone scrambles data saved locally, and each phone has its own unique algorithm, which is not kept by the phone companies. This means that even if a government official came to Apple with a warrant to search the phone’s data, Apple would only be able to give the agency a report full of gibberish that could only be decrypted with the user’s unique algorithm—or with five and half years of decoding (supposedly). Apple plans to include this feature in its newest operating system, iOS 8, and Google will make this feature automatic in the next version of its Android operating system.
The new encryption systems would essentially make it so that surveillance programs and hackers could only access someone’s mobile data with his or her express permission. The NSA could no longer go straight to Apple with a warrant in hand and demand reports on “private” mobile data. However, this also means that the same limitations apply to law enforcement agencies like the FBI. FBI Director James Comey recently voiced his criticisms of this new technology for exactly this reason. He sees use of the encryption technology as a way for mobile phone users to “hold themselves beyond the law” and described situations in which the technology could hinder investigations. However, the encryption system doesn’t prevent the FBI from getting access to all of a phone’s information—just data stored on the phone. Call logs, email logs, and cell tower usages can still be acquired from Apple and Google with a warrant. And law enforcement agencies presumably will still be able to serve warrants on actual phone users if necessary.
These moves from Apple and Google are not too surprising. Part of their ability to sell phones is their promise that users’ private data will remain private, and the NSA’s broad surveillance abilities put that promise into question. If the government challenges the companies’ ability to sell their products, count on them to respond to that challenge. And while Director Comey’s points are certainly valid, they are just one part of the entire social balance between individual privacy and national security. If the American people decide that being able to access a phone’s data in a criminal investigation is more important than private citizens’ ability to protect their phones from unwanted access, then the legislative system can ban this sort of encryption technology. Until then, this kind of move from Apple and Google is justified and, perhaps, necessary.