Apple’s Bark Is Worse Than Its Bite

Jessica Ford, MJLST Staff

Apple’s iPhone tends to garner a great deal of excitement from its aficionados for its streamlined aspects and much resentment from users craving customization on their devices. Apple’s newest smartphone model, the iPhone 6, is no exception. However, at Apple’s September 9, 2014 iPhone 6 unveiling, Apple announced that the new iOS 8 operating system encrypts emails, photos, and contacts when a user assigns a passcode to the phone. Apple is unable to bypass a user’s passcode under the new operating system and is accordingly unable to comply with government warrants demanding physical data extraction from iOS 8 devices.

The director of the FBI, James Comey, has already voiced concerns that this lack of access to iOS 8 devices could prevent the government from gathering information on a terror attack or child kidnappings.

Comey is not the only one to criticize Apple’s apparent attempt to bypass legal court orders and warrants. Orin Kerr, a criminal procedure and computer crime law professor at The George Washington University Law School, worries that this could essentially nullify the Supreme Court’s finding in Riley v. California this year which requires the police to have a warrant before searching and seizing the contents of an arrested individual’s cell phone.

However, phone calls and text messages are not encrypted, and law enforcement can gain access to that data by serving a warrant upon wireless carriers. Law enforcement can also tap and monitor cellphones by going through the same process. Any data backed to iCloud, including iMessages and photos, can be accessed under a warrant. The only data that law enforcement would not be able to access without a passcode is data normally backed up to iCloud that still remains on the device.

While security agencies argue otherwise, iOS 8 seems far from rendering Riley’s warrants useless. Law enforcement still has several viable options to gain information with a warrant. Furthermore, the Supreme Court has already made it clear that it does not find that the public’s interest in solving or preventing crimes outweighs the public’s interest in privacy of phone data, even when there is a chance that the data on a cell phone at issue will be encrypted once the passcode locks the phone,

“[I]n situations in which . . . an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressuring matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away . . . . If ‘the police are truly confronted with a ‘now or never’ situation,’ . . . they may be able to rely on exigent circumstances to search the phone immediately . . . . Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data . . . . Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U.S. 326, 121 S.Ct. 946, which approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant.” (citations omitted) Riley v. California, 134 S. Ct. 2473, 2487-88 (2014).

With all the legal recourse that remains open, it appears somewhat hasty for the paragon-of-virtue FBI to be crying “big bad wolf.”