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Stakes for Local Investigators High|in Apple’s Fight With the FBI

LOS ANGELES (CN) - There's a scene in the film "Casino" where Robert De Niro and Joe Pesci have their wives chit-chat on the phone so the two mobsters can avoid an FBI wiretap and set a clandestine meeting in the Mojave Desert.

"If a phone's tapped the feds can only listen in on the stuff involving crimes," De Niro's character Sam "Ace" Rothstein tells us via voiceover. "So, on routine calls they have to click off after a few minutes."

Watching the scene two decades later, it's clear that government surveillance and telecommunications have come a long way.

Even in 1995, the year "Casino" came out, the concept of a mass-surveillance society where citizens held their lives and memories in their pocket seemed to belong to some distant, totalitarian future.

That future is upon us. And in recent weeks, concerns that have accompanied technological advances have been crystallized in Apple's court battle with the FBI - a fight that has been brewing ever since Apple strengthened encryption of its devices in 2014.

In one corner, the federal government demands that Apple create a backdoor into the iPhone 5c of Syed Farook, who with his wife Tashfeen Malik killed 14 people and injured 22 others during the December terror attack in San Bernardino.

In the other, Apple warns that the creation of new software could compromise the security of tens of millions of customers.

With its focus on terrorism, the debate over the court fight has largely centered on national security issues, privacy and federal law.

But if the government wins, investigators in local police stations and state prosecutor's offices could use the legal precedent to unlock smartphone evidence in cases involving homicide, sexual assault, robbery, identity theft and other crimes.

"While the San Bernardino case is a federal case, it is important to recognize that 95 percent of all criminal prosecutions in this country are handled at the state and local level, and that Apple's switch to default device encryption in the fall of 2014 severely harms many of these prosecutions," New York County District Attorney Cyrus Vance Jr. testified before the House Judiciary Committee on Tuesday.

Before Apple rolled out iOS 8, prosecutors could go to a judge for a lawful search warrant. A pre-iOS 8 scenario: Prosecutors believe that video evidence in a rape case was on a defendant's password-protected smartphone. They ask for a warrant that would allow them to search the device, download the footage and use it to persuade a jury to put the perpetrator behind bars.

Things got more complicated when Apple introduced stronger encryption in September 2014, after whistleblower Edward Snowden's revelations about the National Security Agency's mass-surveillance program.

With iOS 8, Apple allowed users to password-protect devices so that no third party could unlock them, not even the tech company itself or investigators with a lawful warrant.

Prior to the release of iOS 8, investigators had enjoyed a so-called golden age of surveillance with millions traceable by phone and swathes of the population sharing their personal information online and on Facebook, Instagram and Twitter.

But with Apple's security update that golden age came to a dead halt, at least according law enforcement. Those opposed even coined an ominous phrase for the new security protections: "going dark."


"These encrypted devices, they fear, are becoming the equivalent of closets and safes that can never be opened, even when a judge has expressly authorized a search for evidence inside them," Republican Sen. Chuck Grassley of Iowa said at a Senate Judiciary Committee hearing last year.

Prosecutors were also irked that Apple made clear it was engineering its products so that law enforcement officers could no longer gain access.

"Apple will not perform iOS data extractions in response to government search warrants because the files to be extracted are protected by an encryption key that is tied to the user's passcode, which Apple does not possess," Apple says on its website.

On Tuesday, Vance testified that his office has been locked out of 175 Apple devices while investigating attempted murder, child sex abuse, sex trafficking and other crimes.

"My colleagues from jurisdictions around the country have been running into the same roadblocks in their efforts to investigate and prosecute serious crimes," Vance said.

Officials in Harris County, Texas have been unable to access 100 Apple devices. In Illinois, Cook County investigators have 30 locked devices in their custody, while the Connecticut Division of Scientific Services sits on 46 Apple devices it can't crack, Vance said.

Apple also believes it could face hundreds of similar requests from local and state officials.

The company's senior vice president and general counsel Bruce Sewell told the House committee, "Just last week [FBI] Director [James] Comey agreed that the FBI would likely use this precedent in other cases involving other phones. District Attorney Vance has also said he would absolutely plan to use this on over 175 phones."

Privacy law expert Peter Swire has argued that strong encryption is essential for strong national security.

He told the Senate Judiciary Committee last year that at the local law enforcement level, the idea of "going dark" was "fundamentally incorrect."

Swire reminded the committee that not long ago investigators had to build cases without the aid of any smartphone access at all.

Now, law enforcement has greater access to suspects' location information, contact information and "digital dossiers" from personal information in government and financial institution's databases, Swire said.

The advent of smartphones has given law enforcement a wealth of data that they could only have dreamed about two decades ago, Swire said, when most people still used landlines, pay phones or now-antiquated cellphones.

"If the agencies had the choice between 1990-era capabilities or capabilities today, they would choose the capabilities today," Swire testified.

It's worth noting that by the time Sharon Stone had dazzled us in "Casino" during the mid-1990s, the federal government had already fought and lost the last big crypto war.

Apple can take heart in the fact that while the NSA introduced the Clipper Chip in 1993 to allow backdoor access to cell phones, by 1996 the technology was dead in the water.

Whatever the outcome of the court battles, the stakes for thousands of local and state prosecutors are high.

On Tuesday, Vance told lawmakers to craft legislation, stating that they should not delegate the job to the "boardrooms in Silicon Valley."

"Technology companies should not be able to dictate who can access key evidence in criminal investigations," Vance said. "No device or company, no matter how popular, should be able to exempt itself from court obligations unilaterally. And they should not be able to write their own laws."

Vance's office referred Courthouse News to a spokeswoman who did not immediately respond to a request for an interview with the prosecutor. Swire emailed that he was not immediately available for comment on Tuesday.

The offices of the Los Angeles County District Attorney and Cook County State's Attorney declined requests for interviews.

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