To appreciate the depth of the problem, everyone on the Isle of Manhattan is required to have a cellphone. Not just a cellphone, but a smartphone. Not just a smartphone, but one of the designated latest cool smartphones, like an iPhone or a Galaxy. I’m forced to sneak through the security gate at the Hudson with mine.
But my phone never had anything interesting on it, even though you can access the entirety of its contents just by dropping it on the ground. As to everyone else, their phones are encrypted, and without the key, you can’t get squat. Even the companies that make the phones can’t get squat. And this is pissing New York County District Attorney Cy Vance off bigtime.
According to Apple’s website: “On devices running iOS 8.0 … Apple will not perform iOS data extractions in response to government search warrants because the files to be extracted are protected by an encryption key that is tied to the user’s passcode, which Apple does not possess.”
A Google spokeswoman said, “Keys are not stored off of the device, so they cannot be shared with law enforcement.”
Now, on behalf of crime victims the world over, we are asking whether this encryption is truly worth the cost.
Shockingly, Cy answers the question in the negative, that murderers are roaming the streets of Manhattan all because of some guy named Snowden and a bunch of Constitution nuts.
Between October and June, 74 iPhones running the iOS 8 operating system could not be accessed by investigators for the Manhattan district attorney’s office — despite judicial warrants to search the devices. The investigations that were disrupted include the attempted murder of three individuals, the repeated sexual abuse of a child, a continuing sex trafficking ring and numerous assaults and robberies.
Just so it’s clear, 74 cases in a City that produces tens of thousand of arrests is kinda puny, but since Cy brought up the “repeated” sexual abuse of a child, A CHILD!, we would be remiss to not appreciate the dilemma.
Of course, in the olden days (meaning when Robert Morganthau was district attorney), they used to solve these cases without regard to smartphones. Cops used to do something referred to as “investigation,” which involved going out on the street, collecting evidence, interviewing witnesses, beating suspects, and saving the children. Good times.
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. There is no evidence that it would address institutional data breaches or the use of malware. And we are not talking about violating civil liberties — we are talking about the ability to unlock phones pursuant to lawful, transparent judicial orders.
That’s Cy’s response to his own straw-man characterization of the arguments favoring encryption, and even here, he falls flat. The New York County District Attorney’s office has always had its “go-to” judge to sign off on any warrant ever, delightfully referred to as the “Guardian of the Constitution” by appellate courts. And if ever there was a local prosecutor inclined to mass warrants, it’s good ol’ Cy.
Carved into the bedrock of each of these laws is a balance between the privacy rights of individuals and the public safety rights of their communities. For our investigators to conduct searches in any of our jurisdictions, a local judge or commissioner must decide whether good cause exists. None of our agencies engage in bulk data collection or other secretive practices. We engage in targeted requests for information, authorized after an impartial, judicial determination of good cause, in which both proportionality and necessity are tested.
It’s almost as if any warrant ever sought, no matter how baseless or overbroad, wasn’t signed. Did I mention “ever”?
Full-disk encryption significantly limits our capacity to investigate these crimes and severely undermines our efficiency in the fight against terrorism. Why should we permit criminal activity to thrive in a medium unavailable to law enforcement? To investigate these cases without smartphone data is to proceed with one hand tied behind our backs.
Well, more like one finger, the finger that pushes the button that reveals every aspect of a person’s life. And that person may well be wholly innocent of all wrongdoing, even as they are innocent under law at the time Cy’s crackerjack investigators decide they really want to look at one tiny sliver of putative criminality while seeking, and obtaining, judicial approach to give them a digital proctology exam.
Like almost anyone else reading Cy’s op-ed, it’s impossible not to shed a tear for how rogue companies like Apple and Samsung have become complicit in the raping of children. Except that in order to find the goods on those nefarious 74, even assuming that each one is guilty, guilty, guilty, prosecutors want the ability to search everyone. Because you never know who will be the next repeat child sex abuser.
And as long as they’re dipping their toe into digital evidence, can they be blamed for looking at everything there, because maybe, even if it turns out they didn’t abuse any child, repeatedly or just once, maybe they did something else horribly wrong, like throw undersized fish back into the ocean.
Of course, law enforcement managed to find evidence to convict people long before smartphones existed. It was, in terms of today’s facility to push a button and get their hands on a person’s entire life, a great burden, often involving going outside, walking around, talking to people, looking for physical evidence and more. It could make investigators sweat from the hard work of investigating. The horror.
But speaking for the other 1.6 million residents of the Isle of Manhattan, they kinda like the idea that Cy and his minions can’t scope their smartphones because there are perhaps 74 criminals who can’t be caught as easily as technology might allow. Its not that we don’t trust you, Cy, but you can never tell who’s a child sex abuser.
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FYI: You left out the Jr. If I am not mistaken, it is Cy Vance Jr.
You do know…. that the Jr. can really fuck some people up in the head don’t ya?
Poor Vance!
P.S. You should really get back to swinging electronic communications and technology posts again more regularly. I hear thinking about these things is good for your prostrate.
Aren’t you supposed to throw undersized fish back into the ocean of digital evidence? If your humor got any slyer, you’d have the Family Stone singing chorus.
He’s referring to Yates v. U.S., the Sarbanes-Oxley-fish-stick’em-up case. Slip. Op. No. 13–7451 (Feb. 25, 2015).
There’s always someone who doesn’t get the joke. Today, that’s you.
Cy Vance asks, “Why should we permit criminal activity to thrive in a medium unavailable to law enforcement? … We support the privacy rights of individuals. But … 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.”
His focus is too narrow. What about the “medium” of talking in rooms that haven’t been bugged by the cops, or the “medium” of whispering in the corner so the cops can’t hear you, or the “medium” of passing notes and throwing them away before the cops can read them? Many, many police investigations have been thwarted by these means over the centuries since the Bill of Rights was written.
By taking the simple step of requiring people to hold all of their conversations on a smartphone, we could remedy this oversight by the authors of the Constitution. I’m sure that, like Cy Vance, most of the readers of SJ support the privacy rights of individuals. But we must strike an appropriate balance between the marginal inconvenience of speaking or writing into a smartphone and the need for local law enforcement to solve and prosecute crimes.
Don’t quit your day job for writing satire.
Those poor poor policemen. The legislature should pass a law that criminals immediately report to the local police department upon completion of their dastardly deed for arrest. That will fix every thing.
If you only had a dead kid to name it after, you’ve got a winning law on your hands.
“Why should we permit criminal activity to thrive in a medium unavailable to law enforcement?”
Sounds like he’s butthurt cause LEO can’t get their kickbacks from the criminal action cause of the encryption.
That’s so cynical.
The article is terrible by any measure, starting, of course, with what it’s trying to accomplish.
One of the silliest things about it is that first murder anecdote. Authorities can get all sorts of metadata about the communications of the phones, and have probably already figured out that one of them was the personal phone of the dead guy and the other one was his corporate phone.
So, there’s some slim chance that the guy knew his killers and there’s some slim chance there would be evidence on the phones of that, but that doesn’t make good press or a good rationale for banning encryption.
It’s much better on both fronts to leave the implication out there that the phones belonged to the killer(s), who are smart enough to have paid cash for them and to never have actually called anybody with them and to not have left any fingerprints on them, but dumb enough to use high-end phones as burner phones (won’t that cut into the profit margins?) and dumb enough to leave the burner phones with the victim.
If they had to do a nationwide search to find that silly example in Illinois, what does that say about how compelling the 74 Manhattan examples are?