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Apple Raises The Stakes In Silicon Valley's Fight Over Encryption


The dispute over the iPhone in San Bernardino is a federal matter. Apple is fighting the FBI. But in reality, encrypted phones have become a problem for all levels of law enforcement. NPR's Martin Kaste has been reporting on this growing tension over the past few years, and he joins us now. Hi, Martin.

MARTIN KASTE, BYLINE: Good afternoon.

SIEGEL: Some people may hear about this case and assume that it's just about national security, catching terrorists, but you're saying it really isn't.

KASTE: Now, it really isn't. The FBI has definitely been leading the charge in terms of the public war over this. The director of the FBI, James Comey, for a number of years has been complaining about what the FBI calls the process of going dark, which is what they call the process of not being able to get into a phone or another device that's been encrypted, even when they have a warrant. But really, local district attorneys and detectives I've talked to over the years say this is becoming a concern for them, too. Just a few minutes ago, I talked to Cy Vance Jr., the district attorney in Manhattan, and he's really made this a cause. He was telling me that they now have a 155 smartphones in the district attorney's digital forensic lab there which they simply can't open, even though they have a legal right to do so. He told me he thought Apple and Google were being irresponsible. In fact, the phrase he used was that they were acting like teenagers because they were creating a product here that police couldn't get into even when they had a legitimate right to do so. And there's really been a lot of tension building over this in small departments and large. And a lot of the people in law enforcement, generally speaking, are happy to see the FBI now challenging the company, Apple, on this.

SIEGEL: Martin, smartphones have been around for almost a decade. Why is this conflict happening now?

KASTE: Well, when you look at the history here, it's sort of a gift that was taken away. For the first few years, smartphones were a detective's dream. When you think about it, we put our whole life into this object that we keep in our pocket. And then, when there's a crime, one of the first things detectives do, they tell me, is they find the phones. And in many cases, they can make their whole case on that phone. So for the first few years, this was great. But then, over time, those phones started becoming encrypted. They were first being locked, then encrypted. And at first, that was something the detectives could handle. For one thing, they could just negotiate with the person who owned the phone say and say, hey, just, you know, we're going to get a warrant anyway; open that up. That sometimes worked. If they had to get a warrant, it meant a delay. Eventually, Google often could open the phone remotely once they got the right papers. Apple - you'd have to send it to Apple. They'd open it. But they could get in. But once encryption started becoming a default setting and encrypting everything on the phone, then, all of a sudden, that started to vanish. And they would go to the companies, and the companies told them, sorry, we don't have the keys.

SIEGEL: Well, does this encryption by default mean that criminals can communicate without any worries of being tracked by law enforcement?

KASTE: No, it's really important to point out here that this is not about communications. This is - what we're talking about here are the data that you store in your phone, in your pockets. Law enforcement can still use the usual means to get a warrant and talk to your phone company and get the numbers you've dialed, other kinds of communications, data that often are very, very helpful in investigations in finding networks of criminals and that sort of thing. But when it comes to things like your contact list, photos, video, notes you might be taking or stored texts - things are only in the phone - that's what's at stake here. Now, most people don't think about this ahead of time, and they store - they backup their phone on the cloud, that kind of thing. And that can often be had, too. The phone company can - or, in this case, Apple can produce what you've backed up to the iCloud system. But some sophisticated criminals now are aware that, too, and they're turning off the backup process. So really, in some cases, there's data that only exists in the phone that you had in your pocket.

SIEGEL: You mentioned that many in law enforcement are glad to see the FBI challenge Apple on this, but the FBI told the court that it's asking the company only to open this one phone. Why would this change things for the average police detective?

KASTE: Well, I think a lot of people in law enforcement are hoping that this sets a precedent. What's interesting about this case is the federal court is not telling Apple just to turn over some information like you would in a normal warrant case. The court is using this 18th-century law called the All Writs Act to force Apple to actually do something, to actively write software that'll break into their phone. And law enforcement sees that as a possible precedent where these tech companies are forced to cooperate more actively with some of these investigations.

SIEGEL: That's NPR's Martin Kaste. Martin, thanks.

KASTE: You're welcome. Transcript provided by NPR, Copyright NPR.

Martin Kaste is a correspondent on NPR's National Desk. He covers law enforcement and privacy. He has been focused on police and use of force since before the 2014 protests in Ferguson, and that coverage led to the creation of NPR's Criminal Justice Collaborative.