Caught in their own (drag)net
by digby
I don’t use the iPhone so this isn’t particularly relevant to me. I use Android and have encrypted my phone since they first began offering it. (The new ones will default to encryption I understand.) I understand why law enforcement is upset, but really, this is a case of the boy crying wolf:
“There will come a day when it will matter a great deal to the lives of people . . . that we will be able to gain access” to such devices, [FBI director James] Comey told reporters in a briefing. “I want to have that conversation [with companies responsible] before that day comes.”
Comey added that FBI officials already have made initial contact with the two companies, which announced their new smartphone encryption initiatives last week. He said he could not understand why companies would “market something expressly to allow people to place themselves beyond the law.”…
“Apple will become the phone of choice for the pedophile,” said John J. Escalante, chief of detectives for Chicago’s police department. “The average pedophile at this point is probably thinking, I’ve got to get an Apple phone.”
People might not be so anxious to encrypt their phones if the government wasn’t hoovering up everything they can get their hands on and storing just in case they might want to use it against them in the future. It’s intrusive and creepy and you cannot blame companies or users for wanting to put a stop to it. What did they expect?
But it seems to me that what’s really happened is that the power to encrypt has just been handed off from the company to the individual. I assume that the law can legally compel a user to turn over her phone if they have probable cause. This would be in line with a search warrant for someone’s home. Here’s the 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That certainly reads to me as if it’s aimed at the person whose persons, houses, papers and effects are to be searched. The convenient work-around of going to the “owner” of the server through which the information passes through and is stored is what’s being thwarted. And the even more convenient work-around of sweeping up everything “just in case” — the equivalent of the government in 1800 having the post office copy everyone’s mail and keeping it on file for future use — is also thwarted. I would guess that had the government had the good sense not to do the latter, they would be far less likely to have to deal with the former. Companies would not have felt the need to encrypt phones in this way if they weren’t forced to be part of a huge dragnet that angered their customers and made them paranoid. What the phone companies have done is toss the problem back to the individual out of sheer self-preservation.
Having said that, I’m sure the government will figure out a work-around, whether legal, technological or both. And they can still search emails and everything else through the usual methods. People do still use computers. But there’s little doubt that they wouldn’t be in the situation they are today if they had just adhered to the spirit of the constitution and issued warrants the proper way. Their illegal dragnet has caught them in their own web.
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