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FBI Says New Encryption Standards Protect Sex Offenders

17-Oct-2014

Many of us understand by now that our internet privacy is not what we may have once assumed it to be. We learned of NSA surveillance of cell phones and internet data. We discovered that Google and other internet mail providers use data collection techniques to shape the ads you see and "unique digital fingerprints" to uncover child pornography evidence for law enforcement. We have seen enough court cases to know that even your deleted files and web browsing history are accessible through forensic analysis of your electronic devices. 

Americans are increasingly concerned about their privacy as they witness it being whittled away. Now, in an interesting turn, FBI Director James Comey says that new encryption software utilized by Apple for iPhones and iPads and similar software being developed by Google for Android devices can put some criminals "beyond the law."

Comey told Scott Pelley of 60 Minutes that the FBI does not conduct electronic surveillance--including observation of a suspect's online activities--without a court order from a federal judge. When Pelley noted that a disenchanted public who has already seen its privacy rights abused would be skeptical of such a claim, Comey responded, "Yeah, but we cannot read your emails or listen to your calls without going to a federal judge, making a showing of probable cause that you are a terrorist, an agent of a foreign power, or a serious criminal of some sort, and get permission for a limited period of time to intercept those communications. It is an extremely burdensome process. And I like it that way."

The Director says that the process is designed to limit abuses and to ensure that Americans are protected from violations of their privacy. However, he is concerned that new encryption measures will make it even more difficult for law enforcement to obtain critical evidence even with a court order.

Until now, a judge could issue a court order to a tech giant like Apple or Google to unlock encrypted data from a suspect's phone or tablet. The  new encryption software, however, means that data can only be unlocked by a user-set passcode, which denies even the companies the ability to crack the code.

Comey told 60 Minutes of his concern with such encryption systems:

"The notion that we would market devices that would allow someone to place themselves beyond the law, troubles me a lot. As a country, I don't know why we would want to put people beyond the law. That is, sell cars with trunks that couldn't ever be opened by law enforcement with a court order, or sell an apartment that could never be entered even by law enforcement. Would you want to live in that neighborhood? This is a similar concern. The notion that people have devices, again, that with court orders, based on a showing of probable cause in a case involving kidnapping or child exploitation or terrorism, we could never open that phone? My sense is that we've gone too far when we've gone there."

Still, as CNN Money reports, it's not as if surveillance is beyond the FBI's reach, even with stronger encryption measures which make data inaccessible to even the companies who developed the encryption standards:

  • The FBI can still obtain a warrant for your devices--they just can't do it secretly through the tech company. This may make things more difficult, as an agent at the home of a suspect would certainly tip him or her off about an investigation, but it would not make search and seizure of electronics impossible.
  • Video surveillance would make it possible for law enforcement to observe a suspect entering his or her passcode, thus gaining the passcode and access to encrypted data.
  • The NSA has the capability to install "device-controlling malware" onto a cell phone, so it isn't unlikely that federal agencies will use this and other methods of gaining access to a suspect's device.

Smartphone users may hear Comey's implication that iPhone and iPad encryption may shield internet predators and child pornographers from the law, but they should be quick to realize that when it comes to cybercrime and law enforcement, privacy is little more than an illusion.



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