(Bloomberg) -- “We’re not at war -- we care about the same things,” FBI Director James Comey says of the struggle between the U.S. and the tech sector over how private your smartphone should be.
The government wants to work with companies such as Apple Inc. and Google to stop criminals and terrorists from exploiting the encryption technology built into some smartphone operating systems, Comey told the Senate Judiciary Committee last week, echoing President Barack Obama’s call to action. U.S. officials warn it can be used to conceal evidence or plots, as it may have in the terror attacks in Paris and San Bernardino, California, and want a way to crack a phone when they believe it holds vital information.
The industry says encryption and other barriers are there to protect your personal data from falling into the hands of hackers or snoops -- or, some say, the government itself.
“Weakening security with the aim of advancing security simply does not make sense,” the Information Technology Industry Council, which represents 62 of the largest tech companies in the world, said in a statement.
All this comes as a federal judge in Brooklyn, New York, is deciding whether to force Apple to unlock an iPhone seized in a drug probe, at the behest of the U.S.
Here’s what you need to know.
How many cops does it take to break into a smartphone?
A hundred. Twelve. It doesn’t matter -- if it’s encrypted, they can’t.
Encryption -- the coding of information into gibberish, indecipherable without the password -- and other protections are becoming so formidable that even criminal investigators with search warrants can be locked out of a smartphone. The U.S. has forced devices open by entering “every possible pass code,” Assistant U.S. Attorney Saritha Komatireddy said during a hearing in the Brooklyn case. But that’s risky. Some iPhones erase all data if the wrong code is entered 10 times.
Apple doesn’t even keep a “master key” anymore, to gain access to an iPhone when presented with a warrant, said John Kindervag, a tech analyst at Forrester Research. Google has been rolling out similar protections for its Android operating system. Android 5.0 Lollipop offered “full disk encryption” by default on some devices. Enhancements were added for 6.0 Marshmallow.
Smartphones are becoming “technological bank vaults,” Manhattan District Attorney Cyrus Vance Jr. said last month in a white paper, which noted that his office has 111 cases in which encryption has prevented access to phone data. Unless companies make changes, he said, “crimes will go unsolved.”
Blame … the government
Well, it’s partly its fault. “One of the reasons the government has received such skepticism from companies and consumers” over access to phone data “is that it has spent the last two decades trying to strip every privacy protection from cellphones,” said Jonathan Turley, a law professor at George Washington University. Turley, a civil-liberties advocate who has been critical of the government’s handling of such issues, called the Obama administration “one of the worst for privacy protections.” Administration officials declined to comment on that claim.
Tech companies announced new encryption methods after Edward Snowden leaked information in 2013 about mass phone and Internet surveillance by the U.S. Around the same time that Apple and Google were working on new security standards to address consumers’ worries about snooping, Turley said, U.S. officials were lobbying the companies to make smartphones less attractive to thieves and hackers, spurring still more data protection technologies.
“The irony is both government and defrauders have the same interest in cellphones,” he said. “They’re a wonderful reservoir of personal information, data and communications.”
What is the U.S. asking Apple to do?
FBI officials joined with Vance, the Manhattan D.A., in November to request that tech companies develop a measure that would allow searches with a warrant. Vance suggested in his white paper that Apple and Google be required by statute to maintain a means of bypassing user codes if the government obtains a court order.
Among the evidence found on smartphones, the paper cited “photos and videos of child sexual assault; text messages between sex traffickers and their customers; even a video of a murder victim being shot to death.”
Vance said he and other law enforcement officials don’t support a “government-held key,” or back door, for smartphones, an idea that outrages privacy advocates. While some of them have argued that the cloud, or remote data storage offered by Apple and Google among others, removes the need to get into the devices themselves, Vance said that some information, such as certain text messages, may be available only on the phone. Plus, use of cloud storage is optional.
As for a statute, Forrester’s Kindervag said companies that resist the pressure to bend on privacy will be seen as “heroic.”
“I don’t think Congress scares Apple,” he said. “I think Apple scares Congress.”
What happens next?
U.S. Magistrate Judge James Orenstein in Brooklyn is still weighing the Justice Department’s request to make Apple give the government access to the seized iPhone. He expressed skepticism during the hearing that federal law provides for the help prosecutors are seeking. They are pushing for an answer despite a guilty plea in the underlying drug case, saying the probe continues and they need more evidence.
More broadly, the government is talking to tech companies to find “additional ways of making it even harder to for terrorists or criminals to find refuge in cyberspace,” an Obama administration official said in a statement.
So will the techs let the feds into your phone?
So far the companies aren’t budging. None want to be the first to risk losing customers, said Kevin Burden, an analyst with 451 Research who covers the mobile-device industry.
“Apple has taken itself out of the middle ... where it can be used” in a way that would “compromise the security and privacy of consumer devices,” Marc Zwillinger, a lawyer for the company, said at a hearing in October in Orenstein’s court. The phone in the Brooklyn case runs an earlier version of iOS that Apple says it may be able to access -- and that prosecutors say Apple told the U.S. it definitely can access. Later versions cannot be accessed without the pass code, Zwillinger said.
Fred Sainz, a spokesman for Apple, and Liz Markman, a spokeswoman for Google, declined to comment.
To Kindervag, it’s “inconceivable that there’s even a technological middle ground.” Still, the government will keep up the pressure on the tech companies, he predicted, using the recent acts of terrorism “to try to to create a sense of fear in hopes they can sway public opinion.”
Apple CEO Tim Cook said at a conference in October he was opposed to "a back door that’s only for the good guys."
In a back room or a courtroom, something’s got to give.
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