In a landmark case last autumn in Pennsylvania, a US district court judge ruled that citizens are not obliged to unlock their mobile phones if this means engaging in self-incrimination. According to the Securities and Exchange Commission (SEC), Bonan Huang and Nan Huang, former fraud analysts based in Virginia, made almost $3 million on a $147,300 investment from 2012 to 2015 by shorting stocks based on search queries of stock traded by Capital One’s database of clients. The analysts were fired last January, and the SEC filed a civil suit against these two men for insider trading. However, the SEC’s case could not go forward without the passcode, for the mobile telephones are encrypted with Apple software. US District Judge Mark Kearney wrote that as the passwords for the smartphones are not recorded with the corporation, “the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their Fifth Amendment privilege.”
This case is just one of many where the courts have attempted to force either the user or Apple to unlock an iPhone. Apple has been increasing its level of encryption in its mobile software amid privacy concerns in the almost three years following the leaks by former National Security Agency (NSA) contractor, Edward Snowden. Today, there are more and more cases going before the courts, setting precedents regarding the use of smart phones and private information – just a little over a year after Digital Millennium Copyright Actregulations established that it was illegal to unlock smartphones.
Consumers started unlocking and jailbreaking their iPhones in order to extend the functionality of the device and to protect their privacywhen Apple’s security was somewhat shoddy through iOS 7. In recent years, however, Apple’s creation of iOS 8 and 9 include the tightest encryption technology, which has proved challenging for law enforcement authorities and the NSA, which have attempted to access anddecrypt certain iPhones. Today, iPhone users and privacy advocates are worried about how secure the encryption software is on their devices, and if Apple will bend to government pressure, which has been constant in recent years.
Then last fall, the Department of Justice attempted again to force Apple to unlock iPhones, and Apple issued its “Supplemental Response to Court’s October 9, 2015 Order and Opinion“: “Apple agrees with the Court’s preliminary conclusion that the All Writs Act should not be read to permit the relief the government requests. This case is not an instance where ‘the government seeks to fill in a statutory gap that Congress has failed to consider,’ but rather one where the government ‘seeks to have the court give it authority that Congress chose not to confer.'”
So far, Apple has been able to rely upon the fact that the current iOS does not allow even Apple to access data, but this may soon change, as the UK unveiled a draft “Investigatory Powers Bill” on November 4, 2015, which would place tight controls on service providers to aid inintercepting data requiring web and phone companies to keep “internet connection records” for a maximum of 12 months without police warrant. Moreover, this proposed bill would require Communication Service Providers (CSPs) to “provide communications data when served with a notice, to assist in giving effect to interception warrants, and to maintain permanent interception capabilities, including maintaining the ability to remove any encryption applied by the CSP to whom the notice relates” and “to comply with directions issued bythe Secretary of State in the interests of national security; this includes the acquisition of bulk communications data.” According to Edward Snowden, this bill “legitimizes mass surveillance. It is the most intrusive and least accountable surveillance regime in the West.”
Apple CEO Tim Cook pointed out that if Apple had to comply with such a law, Apple would be forced to construct a “back door” to thesoftware, leaving the iPhone vulnerable and defeating the purpose of decryption software. There is no such thing as creating a back door for good purposes only. Speaking out against the proposed UK cyber-spying laws, Tim Cook stated: “If you close down the major companies from using encryption, the bad guys aren’t going to stop using encryption. They are just going to go to another source.”
While many have regarded this bill as a “Snooper’s Charter,” Theresa May, a Conservative Party politician who has been Home Secretary of the UK since 2010, patently denies this. Yet on January 13, May faced scrutiny for the privacy implications of this legislation before the bill’s parliamentary scrutiny committee. This comes on the heels of warnings from US companies such as Google, Twitter and Facebook that any British demands to access customer data and weaken their encryption methods would undermine their services and public trust.