The Washington PostDemocracy Dies in Darkness

Apple and Google’s new encryption rules will make law enforcement’s job much harder

Customers can touch and use real Apple iPhone 5c and 5s models as well as iPads and other products at a Radioshack store in Washington, D.C. (Photo by Linda Davidson / The Washington Post)
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Shortly before I retired as assistant director of the FBI’s Criminal Investigative Division in April, I watched a bizarre kidnapping unfold. An older man was tased, beaten and zip-tied, then forcibly taken from his home in Wake Forest, N.C. The victim was the father of a local prosecutor who’d helped try members of a violent, nationwide gang.

Hundreds of FBI, state, and local law enforcement personnel worked tirelessly to find the victim and kidnappers. Once we identified potential conspirators, we quickly requested and secured the legal authority to intercept phone calls and text messages on multiple devices.

That led us to the victim, just minutes before his life was to end. He’d been locked in a closet in a vacant public housing project apartment in Atlanta, hundreds of miles from his home, quietly awaiting his own execution.

Last week, Apple and Google announced that their new operating systems will be encrypted by default. Encrypting a phone doesn’t make it any harder to tap, or “lawfully intercept” calls. But it does limit law enforcement’s access to a data, contacts, photos and email stored on the phone itself.

That kind information can help law enforcement officials solve big cases quickly. For example, criminals sometimes avoid phone interception by communicating plans via Snapchat or video. Their phones contain contacts, texts, and geo-tagged data that can help police track down accomplices. These new rules will make it impossible for us to access that information. They will create needless delays that could cost victims their lives.*

Law enforcement officials rely on all kinds of tools to solve crimes and bring criminals to justice. Most investigations don’t rely solely on information from one source, even a smartphone. But without each and every important piece of the investigative puzzle, criminals and those who plan acts destructive to our national security may walk free.

In my last FBI assignments, I was privy to information that regularly demonstrated how criminal actors adapted to law enforcement investigative techniques – how drug conspirators routinely “dropped” their cellphones every 30 days or so, estimating the time it takes agents to identify and develop probable cause on a new device before seeking interception authority; how child predators migrated to technologies like the Onion Router to obfuscate who’s posting and viewing online posting and viewing online images and videos of horrific acts of child abuse.

We shouldn’t give them one more tool.

But the long-used cellular service selling points of clarity and coverage have been overtaken by a new one – concealment.  Capitalizing on post-Snowden disclosures fears, Apple and Android have pitched this as a move to protect consumers’ privacy.  Don’t misunderstand me — I, too, place a great value on personal privacy. I have little interest in the government collecting and storing all of my texts and e-mails or logging all of my calls.

But Apple’s and Android’s new protections will protect many thousands of criminals who seek to do us great harm, physically or financially. They will protect those who desperately need to be stopped from lawful, authorized, and entirely necessary safety and security efforts. And they will make it impossible for police to access crucial information, even with a warrant.

As Apple and Android trumpet their victories over law enforcement efforts, our citizenry, our Congress, and our media ought to start managing expectations about future law enforcement and national security success. We’ve lived in an era where the term “connecting the dots” is commonly used. If our cutting edge technologies are designed to keep important dots out of the hands of our government, we all might start thinking about how safe and secure we will be when the most tech-savvy, dedicated criminals exponentially increase their own success rates​.

* Editors note: This story incorrectly stated that Apple and Google’s new encryption rules would have hindered law enforcement’s ability to rescue the kidnap victim in Wake Forest, N.C. This is not the case. The piece has been corrected.