NEWPORT NEWS — The FBI and local law enforcement agencies are concerned about new changes to cellphones they say could hamper their ability to obtain crucial information during criminal investigations.
But not everyone agrees, with iPhone maker Apple and some privacy rights organizations saying the new technology will make the phones more secure. Moreover, some privacy advocates contend police have alternative ways of getting much of the needed information.
The urgency began late last year, when Apple announced that its newest iPhones are being delivered with encryption software that makes it impossible to get data from the phone — including such things as text messages, voice mail and pictures — without the user's password.
Under the new system, the password is more than just a way to unlock the home screen. Instead, it is enmeshed with the phone's data so deeply that the data is impossible to read without it.
According to press reports last year, Google, which builds the Android operating system used on the majority of smartphones sold in the U.S., also hinted it may soon begin using a similar encryption setup by default.
On a recent visit to Hampton Roads, FBI director James Comey voiced concern about the change.
"We are drifting to a place in this country where there will be zones that are beyond the reach of the law," Comey said in a Feb. 19 visit to the Norfolk Field Office, saying the nation needs to discuss such a drastic change "as a democracy."
All kinds of criminals — from pedophiles and drug dealers to terrorists and spies — use cellphones, he said, and police with valid warrants should be able to search them. "If we, even with court orders, aren't able to access that, that would change our world."
"I just don't want to get to a day where people look at us with tears in their eyes and say, 'What do you mean you can't?'" Comey said. "'My daughter is missing, and you have her cellphone — what do you mean you can't tell me who she was texting before she disappeared?'"
The country might ultimately decide that privacy trumps law enforcement on the issue, he said. "But I want to make sure we have a conversation in this country where we really ... understand the public safety trade-off associated with that kind of privacy."
Police, sheriffs weigh in
Local law enforcement leaders can't so far point to a particular case where the new cellphone encryption has hampered an investigation. But, they contend, it's only a matter of time.
"Everything continues to move toward the cellphones," said Isle of Wight Sheriff Mark A. Marshall. "There's so much activity — from the social media pieces to everything you do — being done via these electronic devices."
"Apply that to a missing kid," he said. "Not having the ability to retrieve that data could have significant consequences … and would significantly hamper and impede law enforcement's ability to conduct an investigation."
"It could be every kind of drug case, to a murder case to a espionage national security case," added York-Poquoson Sheriff J.D. "Danny" Diggs. "It's almost beyond belief that a (manufacturer) would create a product that would be an obstacle to a criminal investigation."
In fact, he said companies shouldn't be allowed to make such devices that way.
"Let's say this was a safe in somebody's house, and they failed to give us a combination," Diggs said. "A safe is a physical thing that if we had to take a welding torch to it … we could remove the contents. Even a safe is not exempt from a legal search. So why would a cell phone that could contain data that would be very important to a criminal investigation — why should a manufacturer even be allowed to create such a device?"
Newport News Police Sgt. A.J. Matthews — who oversees the criminal intelligence unit, the division that downloads data from cellphones — also expressed concerns. His team of three detectives, using special software and an accompanying device, can retrieve data from about 80 percent of seized cellphones. He said he'd be "naive" to assume that rate won't fall with the recent changes.
"If there's critical information inside of a phone and we can't access it, and in turn, someone dies or a case goes unsolved that would otherwise be solved … that would be a tragedy," he said.
Matthews said he understands that people have a right to privacy and "we can't abuse our right to search." But he said there should be some "give and take" on the issue, so that in "dire circumstances, if law enforcement needs access to it, that there's a manufacturer override for it."
What if police got word, he said, about an attack about to happen, but needed to access a cell phone to prevent it? "It would be nice if we could say, 'Hey look, this is a very credible threat and we need access to this information,'" Matthews said.
Other ways to get data
But not everybody agrees the problem is all law enforcement officials make it out to be.
Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, a privacy rights group based in San Francisco, said that Comey and others haven't been able to point to any crimes that have gone unsolved because of the encryption software.
"It's a sad story that the FBI director sells," Fakhoury said in a phone interview. "But they don't have an actual anecdote. They talk about these hypotheticals and these generalities, but the reason they don't have an actual case is because their concerns are really overblown."
Though law enforcement may soon be unable to get into some cellphones, Fakhoury said, there are typically other ways to get at customer's cellphone usage. "We live in a time where there's more information and more evidence available to law enforcement than any other time in our history," he said.
Take Comey's missing teenager hypothetical, he said. Police can still gather a lot of information about her phone use even without unlocking the device.
For example, police can file search warrants with Facebook, Twitter, Instagram and other places to get messages that were sent through phone applications. "They could also go to her cellphone company and tell us which cellphone tower this cellphone connected to an hour an ago," Fakhoury said.
Police can also go through such phone companies as Verizon and Sprint to get phone log history — who called or texted whom, and when.
Though the phone service providers don't save actual text message content for long — usually only a matter of days — police can ask companies to "hold" such messages, giving them time to get a warrant to obtain them.
Moreover, Fakhoury said, if someone regularly backs up his or her phone data through an automated "cloud storage" system — such as Apple's iCloud service — the data on the remote server can still be obtained by way of a search warrant.
Beyond that, he asserted that creating a mechanism or "key" allowing law enforcement access to the phone's data would also be a back door that others — including credit card crooks and identity thieves — could sneak through.
"You can't create a door in that is only for law enforcement," Fakhoury said. "Once you create an insecure system that's designed to allow law enforcement in, you're also allowing the bad guys in, too."
"I don't have a problem with them trying to solve street crime — robberies and murders," he said. "But the question becomes: Is it worth it to say to everybody in the United States, 'You don't get to have security — you don't get to have privacy — because we don't know when or if you will be target, but we want the ability to access your data just in case you do become one'?"
A Cato Institute scholar, Julian Sanchez, also pointed out in a recent essay, "Old Technopanic in New iBottles," that it's not just American law enforcement agencies that will be rebuffed. Foreign governments trying to crack down on dissidents also will be.
"Our own government is not the only one that would predictably come to these companies with legal demands," Sanchez wrote. "An iPhone that Apple can't unlock when American cops come knocking for good reasons is also an iPhone they can't unlock when the Chinese government comes knocking for bad ones."
Apple not budging
Apple's move could also be a good marketing decision.
Some scholars have pointed out that there is a growing sense in recent years that government has overreached on private data collection — from the National Security Agency scandal exposed by Edward Snowden, to telephone records sharing and license plate information amassed by state and local police.
Apple's decision, they say, could simply be part of a pendulum swing the other way. Whatever the case, Apple, the world's largest company by market value, shows no sign of caving.
"People have trusted us with their most personal and private information, and we must give them the best technology we can to secure it," Apple's chief executive, Tim Cook, said at a White House "cybersecurity summit" at Stanford University in February, according to published reports.
He talked about how keeping things from repressive regimes can sometimes be the difference between life and death. "If we don't do everything we can to protect privacy, we risk more than money," Cook said. "We risk our way of life."
Apple's new encryption policy was timed to the release of the iPhone 6 last fall. An Apple spokeswoman didn't return a phone call Friday on whether previous iPhones, if using the latest iOS 8 software, are now similarly encrypted.
When seeking passwords, police can take educated guesses or try common choices. But one issue that still likely needs to be hammered out by the courts, experts say, is whether a criminal suspect can be ordered to turn it over.
Though Fakhoury said a "substantial amount" of Americans don't use cellphone passwords, one local police detective said the majority of phones now being seized are indeed password protected.
At issue: Does forcing someone to give up his password violate his Fifth Amendment right against self-incrimination? Or is it more akin to someone being forced to open his mouth so police can swab a DNA sample from his cheek?
"I would think that a judge could compel someone to give up their password," said Diggs, York's sheriff, adding that his deputies have convinced some suspects to give them up voluntarily. "But what are you going to do if the guy says, 'I forgot my password'?"
"They can delay you all day, giving you incorrect passwords," added Newport News' Matthews.
The newest iPhones can also be set up so that 10 unsuccessful password attempts will delete saved data.
Newport News Police Chief Richard W. Myers said he would like new technology — whether on the consumer side or law enforcement side — to be vetted before being implemented.
Consumer technology sometimes emerges that makes it more difficult for police to do their jobs, "with very little dialogue with the criminal justice system," Myers said. On the other hand, he said, new police technology often emerges without much discussion, either.
"Sometimes (the new police technology) falls into a gray area with the crossing of the boundaries from a constitutional perspective," he said. Only later, Myers said, are arrests with the new police tools sometimes called into question. "I wish we could develop a forward way of thinking" where the discussion came first, he said.
Matthews, for his part, said he and his small team of Newport News police investigators are "preparing for a challenge with newer phones.
"Hopefully our training will keep up with how … to address these challenges," he said. "We're trying to take precautions to circumvent these problems."
But, he added, "it's definitely a concern. We are concerned if this trend continues."
Dujardin can be reached by phone at 757-247-4749.