Last week, FBI Director James Comey (same guy who refused to sign off on Bush and Cheney's torture memo) made a very common-sense case for law enforcement access to data stored on mobile devices: provided warrants can be issued for their content, tech companies should not make the content for which there is a warrant inaccessible. With the backdrop of advanced encryption technology that makes it impossible for even the makers of the devices to retrieve data from them being enabled by default, Comey argued that it would prevent law enforcement from executing court orders and warrants.
Presumably, one cannot force the user of a device to unlock it, given their Fifth Amendment rights against self incrimination. This, in effect, circumvents the Fourth Amendment by rendering a valid warrant ineffectual. Even if one got around the legal hurdle, there is no way to physically coerce someone who will not comply - at least, hopefully, not legally (torture).
Comey cited examples of cases where evidence recovered from phones helped convict criminals, including child rapists and murders.
Note that in each case, Director Comey was talking about data obtained with legal warrants helping convict the most heinous crimines from rape and murder to hit and run. To convict. Keep that in mind.
Keep it in mind, because the Snowden defenders from Glenn Greenwald's magazine "The Intercept" rushed to discredit Comey immediately by focusing on something that is completely different: how the suspects were captured, rather than how they were convicted. Summarizing, the Greenwald lackeys began:
This is text-book strawman. James Comey never argued that data on the criminals' phones were needed to identify or capture them, but that it was a key factor in their conviction. Anyone even remotely familiar with the American Constitutional system of criminal justice would know that all it takes to issue a warrant is probable cause, supported by oath by an officer; it takes a lot more to convict; it takes guilt beyond a reasonable doubt.
Glenn Greenwald's worshipers at The Intercept may play dumb dumb pretending not to know the difference, but it's quite clear they will defend child rapists and murderers before they recognize the need for law enforcement to be able to legally access communications of suspects.
Let's examine a couple of examples of the dumb-dumb crowd's futile attempt to discredit Comey.
In the case of the murder of the Los Angeles toddler mentioned in Comey's remarks, The Intercept argues that because an investigation found that prior government action could have prevented the death of the 2-year-old, it is therefore fine to let the killers skate when the law did catch up to them. You know, the "You're too late, I get to kill my child" theory of criminal justice.
Refuting Comey's claim that GPS data from the perpetrator in the hit and run case in Sacramento helped build law enforcement's case, The Intercept quoted a Sacramento Bee story regarding the driver's confession. Because he confessed, they argue, one needed nothing else.
This isn't even modestly true when it comes to prosecution - and it shouldn't be. Confessions can be coerced, under duress, or made to spare the real culprit. Physical evidence is key, more so than confessions. The Sacramento Bee story also noted that the suspect confessed "under questioning." That the fact that law enforcement could and would easily get a warrant for the data on the killer's phone placing him at the scene of the crime is a likely factor leading to the confession (and that a lack of it would spur any defense attorney to vacate any confession) apparently never crossed the minds of the geniuses at Greenwald's school of insanity.
In this and another child murder case in Shreveport, Louisiana, The Intercept's piece heavily relies on "local news reports" to attempt to argue that law enforcement did not need access to the suspects' phones (even if they had it), because, as we all know, local news is always the most accurate and most complete record of murder trials...
There is, to be sure, a technological challenge in implementing what Comey wants: a way for law enforcement to access encrypted data without the data itself being vulnerable to criminal elements of society. That discussion, however, requires much lower temperature the anti-government ideologues are willing to allow. As much as The Intercept and the extremist crowd would like to argue that compelling cases could have been built without access to the data on the suspects' phones in Comey's examples, none of them had the responsibility to prosecute and prove guilt beyond a reasonable doubt. More evidence is always better, and taking a vital tool that has always been accessible to law enforcement out of their hands would in fact tip the balance in favor of violent criminals.
Why do I say that it is a tool that has always been accessible to law enforcement? Because it has. Communications by suspects have always been available to prosecutions and law enforcement under fourth amendment warrants. Before the digital era, it was much easier to access paper communications and wiretaps, and anyone destroying evidence could be charged with obstruction of justice.
With today's level of encryption - that no one, not even Comey's adversaries, has disputed - that is no longer the case. As long as the device exists, its owner cannot be charged with obstruction, because they haven't actually destroyed anything - of if they have, law enforcement cannot prove it without access to the device. But as stated earlier, they cannot be forced to unlock the encryption of their devices because of the Fifth Amendment protection against self incrimination, and that creates a perfect paradox in favor of the criminal.
But couldn't the communications be accessed through the providers? So long as the data remained only on your encrypted device (which criminal elements would ensure it does), the answer is no. A provider cannot read an encrypted text message - only the sender and the recipient, who have the decryption keys, can. Same is true for emails and other communications. Sophisticated criminals can easily take advantage of this, evading law enforcement.
Communications between parties aren't the only items of concern either. Criminal (and terrorist) plots, plans, and details can reside on a modern device with encryption so good that even the device's makers cannot decrypt it. Invariably in every case, Greenwald's The Intercept argues that it is perfectly fine to protect the communications of child rapists, murderers and other criminals because... because there's traffic cameras, or something like that.
While the solution will not be easy, what's the next step if the Snowaldian agitators get their way and communications as a means of evidence in crime simply disappears? Will we be able to convict violent white supremacists who plan and execute murders of black and brown teenagers... even outside of Florida? Will the terrorists who plan abortion clinic bombings or shootings get off just because they weren't the one that threw the grenade or pulled the trigger visible from a traffic camera?
The anarchists in the mold of Snowden and Greenwald and The Intercept are clear about this: yes, the government should be kept from legally obtaining these communications and documents even under a warrant, that child rapists and murderers should be granted additional protection by technology beyond what is already granted by law.
But on the other hand, there is real security risks of having communications float around the ether as text, where anyone with the expertise can access it. Comey's "front door" could be a universal decryption technology built in that can only be executed upon a court order, and any other use of it could be criminalized. To keep it safe, these "keys" can even vary from device to device. It could be held by manufacturers and should it be compromised, immediately reissued the way credit cards are today. Or there could be another brilliant technological solution that no one has yet thought of.
Thought of. Thought. That's what this debate needs. The vaporing anarchists who outright deny the need for law enforcement to legally access this data are not willing to put in that thought. But the rest of us should.
Like what you read? Chip in, keep us going.