Many Americans were surprised-yet-not-so-surprised by Edward Snowden’s 2013 revelations about the National Security Agency’s (NSA) mass surveillance. In answer to those and other revelations, both Apple and Google introduced smartphone operating systems with such strong default encryption that even Apple and Google could not break the codes, provided the data was stored only on the smartphone owner’s device. The FBI is unhappy.
James Comey, the FBI’s current Director, call on Congress in mid-October 2014 for a “regulatory or legislative fix” to that strong encryption, giving law enforcement access to the encrypted information.
Let’s step back for a minute: Apple and Google introduced operating systems with strong encryption for at least two reasons: to protect their users’ privacy, not only from governments but also from private hackers; to reassure foreign customers who were justifiably wary of American devices and software after the Snowden revelations.
The FBI Director says he understands all that: the surprise, the privacy concerns and the marketing decisions. However, Mr. Comey also asserts that “homicide cases could be stalled, suspects could walk free, and child exploitation victims might not be identified or recovered” without some avenue for the FBI’s access to encrypted cellphone data. Mr. Comey believes it may be time to suggest that the “post-Snowden pendulum has swung too far in one direction – in a direction of fear and mistrust.” Well, fear and mistrust: rightfully so. Too far: not necessarily.
Mr. Comey is suggesting dialogue and the possibility of access to encrypted data through the legal process: by court order, for example, with Apple and Google still controlling the “keys” to deciphering the data. He cited several cases, such as a Louisiana murder and a California hit-and-run homicide to support his position.
Privacy advocates, Google and Apple remain wary of the FBI’s position: they see these stronger privacy protections as corrections of a pendulum that swung too far toward invasions of privacy; it is unclear whether the cited cases could have been solved with a standard warrant for cellphone access; intentionally created vulnerability for cellphones wrongfully compromises privacy and leaves data open to hackers.
At this point, the FBI is seeking a Congressionally-created avenue to the data; however, privacy advocates, Apple and Google remain adamantly opposed.
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