Mobile device manufacturers are strengthening privacy protections on their products in a move that will make it more difficult for law enforcement officials to access data stored on the smartphones and tablets of criminals for which they have a warrant to search.
Apple recently changed its operating system, and Google is changing Android with encryption that even the companies themselves will not be able to unlock.
In a criminal investigation, mobile devices are lawfully seized from suspects and often produce information integral to the case. Encrypted devices will only increase pressure on mobile providers and Internet service providers to provide more call data and records. The result: police intelligence gathering operations that will be less-targeted, take longer and cost more.
Such a prospect is particularly troubling when rapid access to mobile phone data can be the difference between life and death.
In Minnesota last month, two missing 13-year-old girls were quickly located and rescued from the basement of a kidnapping suspect’s home, thanks to the quick work of Anoka County Sheriff’s Office investigators, who tracked the girls’ whereabouts through an analysis of text messages on one of the girl’s iPods.
“That case was solved by a detective in the lab, not by any field work or eyewitness accounts. It was digital forensics,” said Anoka Commander Paul Sommer in a news account. “It’s become an investigation imperative. You try to find the personal electronics.”
Valuable information – including images, photos, movies, Internet activity including social media, emails, instant messenger chats including Yahoo and Skype, browser history and Google searches – obtained on a lawfully seized device can be used to inform an investigation by highlighting people and places of interest and then potentially linking a suspect to a crime or a criminal network. The process supports intelligence-led operations and enables law enforcement to solve cases faster. Without it, victims like those 13-year-old girls – or suspects like the one in Minnesota – are more difficult to locate.
In the encryption debate, what is somewhat neglected is the fact that with a warrant, law enforcement agencies can obtain phone calls, data records and text messages from the mobile carrier and ISPs. The move by mobile device manufacturers to encrypt data will only strengthen the call for data gathering and retention laws to be widened – and service providers will feel the pressure.
Locking mobile devices also appears to be short-sighted from those that also facilitate mobile phone data to be backed up in the cloud. Dependent on the country, law enforcement agencies can also obtain the data with a court order or National Security Letter requesting access to certain accounts. Where deemed appropriate, the U.S. Department of Justice can also hold a defendant in jail for contempt of court for failing to unlock at phone that contains probable evidence and obstructing access to evidence.
Fortunately, law enforcement has always had an enormous range of tools in its arsenal and will continue to invest in new technologies to stay ahead of tech-savvy criminals. This will inevitably include directing resources toward the development of counter-encryption capabilities, money that could be better spent to catch criminals.
Other agencies will simply resort to old-fashioned methods of informants, physical surveillance and interviews, which will greatly slow down the process of finding evidence and building a case against a suspect.
And while encryption may slow down an investigation, information from mobile devices provides just one piece of the crime puzzle. Other tools such as analytics software offer the ability to easily and quickly analyze data from sources as varied as video footage, game consoles and GPS units that could be acquired as part of a criminal investigation.
Investigators can use the information to discover people, entities, patterns, locations and relationships of interest, which informs operational decisions.
In some large cities, more than 50,000 mobile devices are lawfully seized each year, and that number continues to grow. Access to and analysis of digital content allows police to more effectively track offenders, stop drug trafficking and protect children from exploitation. Encryption of digital content is not an answer, but an impediment. The solution is governance and process by warrant over the unlocking authority, which is already largely in place.
Jeff C. Frazier of Cary is a former FBI special agent.