Smartphone Encryption Impact on Crime Victims

Transcription

Smartphone Encryption
- and the -
Impact on Crime Victims
Presented by the New York County District Attorney’s Office
T h e N e w Yo r k C o u n t y D i s t r i c t A t t o r n e y ’s O f f i c e
Accessing Evidence
Nearly every criminal case has a digital component. The evidence required to
identify, locate and prosecute criminals used to reside in file cabinets, closets, and safes;
today, much of it is stored on smartphones.
The Fourth Amendment to the Constitution authorizes “reasonable” searches and
seizures, providing law enforcement agencies access to places where criminals store and
conceal evidence – from car trunks, to storage facilities, to safety deposit boxes, to
computers, mobile devices, and digital networks.
In order to safeguard Fourth Amendment rights, searches are conducted pursuant to
judicial warrants, based on a neutral judge’s finding of probable cause.
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Accessing Evidence
Previously, when law enforcement seized a criminal suspect’s smartphone pursuant
to court-authorized warrant, Apple and Google would comply with the judge’s
orders by extracting evidence from the device, and sending the evidence to
prosecutors.
In 2014, the companies announced that they had reengineered their operating
systems with default device encryption, and could no longer access their own
products as a result.
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Source: https://www.apple.com/privacy/government-information-requests
In September 2014, Apple engineered its
new mobile operating system, iOS 8, so that
it can no longer assist law enforcement with
search warrants written for locked devices.
Google, maker of the
Android operating system,
quickly announced plans to
follow suit.
Apple and Google’s operating
systems run a combined 96.7%
of smartphones worldwide.
Source: https://www.apple.com/privacy/
government-information-requests
Source: http://officialandroid.blogspot.c
om/2014/10/a-sweet-lollipopwith-kevlar-wrapping.html
Source: http://www.idc.com/prodserv/
smartphone-os-market-share.jsp
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Apple estimates that 94% of all Apple devices are running
iOS 8 or newer as of February 2016
Source: https://developer.apple.com/support/app-store
This means that Apple is unable to access data on 94% of its devices.
Law enforcement agencies are unable to decrypt data on Apple devices running iOS 8 or 9.
Apple says that they can’t either.
Smartphone device encryption keeps digital evidence beyond the reach of law enforcement
agencies with valid search warrants, making it difficult to build cases against perpetrators
and deliver justice for crime victims.
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Apple Smartphone Evidence
Supports Wide Variety of Office’s Cases
October 2014 – January 2016
Larceny, forgery, cybercrime,
and identity theft 36.42%
Drugs and narcotics
18.06%
Other 4.03%
Sex Crimes 15.97%
Assault, robbery, and
burglary 13.88%
Homicide and attempted
murder 7.01%
Weapons charge 4.63%
Source: District Attorney’s Office’s High Tech Analysis Unit. Listed by top charge.
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In November 2015, the District Attorney’s Office released a comprehensive white
paper detailing the investigative challenges posed by smartphone encryption.
The DA’s Report:

Summarizes the smartphone encryption debate and
relevant technology

Demonstrates the importance of smartphone evidence

Dispels misconceptions about law enforcement’s
position, including the myth that we support a
“backdoor” or government-held “key”

Encourages an open discussion with technology
companies, privacy advocates, and lawmakers, and

Proposes a solution:

Require mobile operating system designers to
access data on their devices when served with a
warrant.
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SMARTPHONE ENCRYPTION MYTHS
New smartphone technology is rendering our laws insufficient to protect public safety.
Last year, Apple and Google, whose software runs 96.7 percent of the world’s smartphones, announced they had re-engineered their operating
systems with “full-disk” encryption — expressly so that they could no longer unlock their own products. In effect, the companies are now able to
say: “We will no longer comply with judges’ orders to unlock passcode-protected phones, because we no longer can. ”
The Manhattan District Attorney’s office immediately and repeatedly engaged the companies, Congress and the public in a dialogue about how this
new level of encryption inhibits the investigation and prosecution of everyday crimes. … In a recently published report, my office — in consultation
with cryptologists, technologists and law enforcement partners — has proposed a solution that we believe is both technologically and politically
feasible: Keep the operating systems of smartphones encrypted, but still answerable to locally issued search warrants. …
MYTH 1: We want to ban encryption.
MYTH 2: We want to weaken smartphone security.
MYTH 3: We want a backdoor.
MYTH 4: We want “surveillance” of smartphone communications.
MYTH 5: We want warrantless searches.
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Myth #1: We want to ban encryption and weaken
smartphone security.
We don’t. We support encryption. We want smartphone makers to offer the same
strong encryption that Apple employed before iOS 8.
Previous mobile operating systems allowed the companies to access data on a seized
device with a valid court order. Apple and Google have never explained why the
prior systems lacked security or were vulnerable to hackers and thus needed to
be changed.
Apple offered strong encryption in iOS 7, yet maintained the ability to help – in Apple’s
own words: “police investigating robberies and other crimes, searching for missing
children, trying to locate a patient with Alzheimer’s disease, or hoping to prevent a
suicide.”
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Myth #2: Law enforcement wants to be able to
conduct warrantless searches of these devices, just
like the NSA did for years.
Lawful access to criminal evidence on smartphones has nothing to do with the
kind of mass surveillance or bulk data collection disclosed by Edward
Snowden. That is not the access that local law enforcement seeks or
expects.
We do not want a “backdoor” for the government to access your information.
We don’t want a “key” held by the government. Rather than finding ways
around the Fourth Amendment, we want neutral, local judges to determine
whether searches are lawful — not law enforcement, and not Silicon Valley.
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Myth #3: Certain places have always been off limits to law
enforcement. They just want to make their job easier.
Centuries of law hold that no item – not a home, a file cabinet, a safe, or a
smartphone – is beyond the reach of a court-authorized search warrant. Law
enforcement can even exhume a body with a search warrant, when necessary
for a criminal investigation.
iPhones are the first warrant-proof consumer products in American history.
With default device encryption, Apple and Google are providing criminals with
unprecedented, evidence-free zones.
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Myth #4: Data stored on smartphones can be obtained elsewhere.
In most cases, law enforcement cannot obtain the entirety of an iPhone’s data by
obtaining the contents of the associated iCloud account.
• Apple users are not required to set up iCloud accounts or to back-up data to
iCloud accounts.
• Only 5 gigabytes of free storage space on iCloud are given to users. The iPhone 6
comes with greater storage space on the device itself.
• Users can choose which types of data they want to back up. In our experience,
criminals are careful to avoid backing up evidence.
• iMessages and text messages are not available from iCloud.
• Data is not backed up to the cloud until the iPhone is connected to WiFi.
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Myth #5: Police and prosecutors don’t really need
smartphone data to keep us safe.
Many perpetrators, particularly those who commit sexual offenses, take photos and videos of their acts.
Smartphone evidence can mean the difference between catching them and letting them go free. These examples
– and hundreds like them – demonstrate the power of smartphone evidence in criminal cases, before iOS 8.
Homicide: People v. Hayes
Indictment 04451/2012, New York State Supreme Court
An individual was recording a video on an iPhone when the defendant
fatally shot him. The video was used at trial to corroborate eyewitness
testimony. The shooter was convicted of murder at trial and sentenced to 35years-to-life in state prison. If the phone had been encrypted and no one alive
knew the passcode, the evidence would be lost.
Sex Offense: People v. Visoso
Smartphone photos were vital to the prosecution of an “upskirter” who secretly took pictures
violating women’s privacy with an iPhone.
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iPhone Evidence Used To Exonerate
Innocent Individuals (Before iOS 8)
Manslaughter: People v. Rosario
•
Police discovered the victim dead in his apartment from a gunshot
wound to the head. Based on surveillance and other records, the
police arrested an individual.
•
Several phones were recovered in close proximity to the decedent,
including a locked iPhone 3GS running iOS 3.X (pre-iOS 8).
Prosecutors flew the phone to Apple with a judge’s unlocking order.
•
A few days before the case was to be presented to a grand jury, call
detail records linked to the decedent showed that outgoing
communications from his phone were inconsistent with the
estimated time of death and timeline of events. The individual held
in custody was released.
•
Once unlocked by Apple, contact information in the victim’s phone
led investigators to another individual, who confessed to the killing.
He pled guilty and was sentenced to 17 years in prison.
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Despite Search Warrants, More Than 205 iPhones
Remain Inaccessible to the DA’s Office
October 2014 – February 2016
These devices represent investigations into all manner of
crime, including:
• The attempted murder of 3 individuals
• Repeated sexual abuse of a child
• Sex trafficking
• Assault and robbery
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Crime Victims Await Justice
“They’re looking into the future (and at) privacy but what about the victims? (Brittney) can’t speak for
herself. I don’t have any rights and I want law enforcement to be able to access that phone”
- Barbara Mills, mother of Brittney Mills, who was killed in April 2015 in Baton Rouge, LA
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The Homicide of Brittney Mills
Brittney Mills was eight months pregnant when she was gunned
down inside her Baton Rouge, LA, home in April 2015.
Her unborn baby died a week later.
 There were no witnesses or surveillance cameras, but police believe the
shooter was likely someone she knew.
 Brittney was on her phone in the hours leading up to the shooting, and
her family gave permission for the phone to be searched but did not
know her passcode.
 Investigators obtained a search warrant for iCloud data, but Brittney did
not own a computer and had not backed up her phone for three months.
 Prosecutors obtained another search warrant, asking Apple to help them
gain access to the encrypted device, but the company said there was
nothing it could do.
 The case remains unsolved. Brittney’s killer remains on the loose.
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Apple v.s. FBI
Source: Joe Raedle/Getty Images
Source: Chip Somodevilla/Getty Images
"They were targeted by terrorists, and they need to know why, how this could happen.”
- Stephen Larson, lawyer representing San Bernardino families
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On February 16, 2016, a U.S. magistrate judge in California ordered
Apple to help the FBI gain access to the phone of one of the shooters in
the San Bernardino terrorist attack.
Apple CEO Tim Cook responded with a 1,100-word open letter to customers vowing to fight
the order and defending the company’s unilateral decision to make its devices warrant-proof.
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District Attorney Vance and NYPD Commissioner Bill Bratton held a
media availability to discuss the impact of smartphone encryption on
crime victims across the country.
Source: Jefferson Siegel/New York Daily News
February 18, 2016
•
“This has become the wild west in technology.
Apple and Google are their own sheriffs, and
there are no rules.”
•
“Local law enforcement agencies around the
country are grappling with the same problem of
explaining to crime victims and surviving family
members that we have hit an investigative
roadblock or dead end, because Apple and
Google no longer comply with warrants issued
by judges.”
•
“Apple and Google have created the first
warrant-proof consumer products in American
history, and the result is that crimes are going
unsolved and victims are being left beyond the
protection of the law.”
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Recent Statements
“I think the companies do owe it to the nation to come up with a procedure for providing that information for
law enforcement… If law enforcement doesn’t have appropriate information to pursue terror threats and other
violent crime, of course, literally people would be physically endangered.”
-
Mayor Bill de Blasio, House Homeland Security Committee Hearing, March 16
“We should understand as we talk about the Constitution that it guarantees no absolute right to privacy.
It guards against unreasonable search and seizure. But how is what we are talking about at all unreasonable?”
- Commissioner Bill Bratton, New York Times, February 22
“Simply put, if criminal wrongdoers can hide the evidence of their crimes on their smartphones and if that
evidence is forever beyond the reach of law enforcement, then crimes will go unsolved, criminals will go free and
the safety of all of our citizens will be diminished. In the arms race between criminals and law enforcement the
criminals will have won.”
-
Los Angeles County District Attorney Jackie Lacey, Letter to Senate Judiciary Committee, July 2015
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President Barack Obama
Source: Neilson Barnard/Getty Images
March 11, 2016
“Before smartphones were invented and to this day, if there is probable cause to think that you have abducted a
child, or that you are engaging in a terrorist plot, or you are guilty of some serious crime, law enforcement can
appear at your doorstep and say we have a warrant to search your home and can go into your bedroom and
bedroom drawers to rifle through your drawers to see if there’s any evidence of wrongdoing.”
“It's fetishizing our phones above every other value, and that can't be the right answer... If [the government] can't
get in, then everyone is walking around with a Swiss bank account in their pocket.”
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What Victims’ Advocates Can Do
• Provide case examples from your work that can be used to show the effect these
policies have on your clients and stakeholders.
• Call on Apple to reconsider its approach in light of the impact on crime victims.
• Write op-eds or open letters to your local media.
• Discuss this issue with your elected officials and community leaders.
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Example: Safe Horizon Op-Ed
The battle to gain access to a passcode-protected phone of one of the assailants in last year’s San Bernardino attack is pitting the need for data security against
the need to fight terrorism. Lost in the debate: This fight is not just about stopping terrorists. It’s about protecting children and others from abusers. With
current smartphone encryption, and even stronger encryption that Apple and other tech companies are developing, evidence of some of these most abhorrent
and hard-to-prove crimes is becoming increasingly difficult to obtain. Staff at Safe Horizon saw such evidence all too often — until the new operating systems
started rolling out in 2014. These images were key factors leading to the arrest and prosecution of several offenders.
What does one of these cases look like? In 2014, a mother noticed that her 12-year-old daughter was depressed, and spotted some troubling posts on her
Facebook page. The mother checked in with her daughter — who tearfully recounted being raped by a stranger. … The young girl disclosed to police that her
rapist had taken cell-phone images of her performing sexual acts — and so, the police obtained a warrant to search his device. What they found was horrific.
To start, the screen saver image on the suspect’s phone was of him sexually assaulting this young girl. Then police found images of other children on the
phone. They later learned that the abuser was a recruiter for a large human trafficking ring that involved many young victims.
Such evidence is absolutely crucial in prosecuting crimes that can otherwise be daunting to prove. Yet if this same case were to happen today, with current
smartphone encryption in place, those images of childhood sexual abuse could never have been found. And it was only because of the search of the suspect’s
phone that another critical piece of evidence tying the initial defendant to the larger trafficking ring was uncovered. That enabled officials to apprehend
additional suspects before any additional children were harmed. …
Apple wants its customers to feel secure, that by purchasing an Apple product their personal information will be safe and protected. But parents — who also
purchase Apple products — want their children to be safe and protected. Today, one in five girls and one in 20 boys are victims of child sexual abuse. We
shouldn’t give their abusers the ability to dispose of evidence with impunity. … We recognize and deeply respect the right to privacy, and oppose unwarranted
intrusion. But when police have a search warrant and need to get at evidence that’s locked away, they also have a right — and a duty — to protect the public.
Including, and perhaps especially, young children.
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#UnlockJustice
On April 18, DA Vance and a
coalition of crime victims and victim
assistance organizations called on
Congress to ensure lawful access to
smartphone evidence in criminal
investigations.
Barbara and Tia Mills, mother and sister of Brittney Mills
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manhattanda.org/smartphone-encryption
• Sign up to receive updates and news alerts
• Read the latest:
• Published articles
• Congressional testimony
• “Report on Smartphone Encryption and Public Safety”
• “Smartphone Encryption and the Impact on Law Enforcement”
presentation
• Find contact information for members of Congress
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Smartphone Encryption Impact on Crime Victims

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