A November 2015 report of the Manhattan District Attorney’s Office in New York City sets forth succinctly a huge public safety problem of which most Americans are unaware:
“Most people today live their lives on smartphones, and, in this regard at least, criminals are no different. While in the past criminals may have kept evidence of their crimes in file cabinets, closets and safes, today that evidence is more often found on smartphones. Photos and videos of child sexual assault, text messages between sex traffickers and their customers, even a video of a murder victim being shot to death — these are just a few of the pieces of evidence found on smartphones and used to prosecute people committing horrific crimes.
“Last fall a decision by a single company changed the way those of us in law enforcement work to keep the public safe and bring justice to victims and their families. In September 2014 Apple announced that its new operating system for smartphones and tablets would employ, by default, what is commonly referred to as “full-disk encryption,” making data on its devices completely inaccessible without a pass code. Shortly thereafter, Google announced that it would do the same.
“Apple’s and Google’s decisions to enable full-disk encryption by default on smartphones means that law enforcement officials can no longer access evidence of crimes stored on smartphones, even though the officials have a search warrant issued by a neutral judge.
“Apple and Google are not responsible for keeping the public safe. That is the job of law enforcement. But the consequences of these companies’ actions on public safety are severe.”
Smartphone encryption will hamper many criminal investigations. E-mails, text messages, voice messages, photos and other data — all of which could lead to the perpetrator of a crime or finding an abducted victim — will now be fully encrypted simply so Apple and Google can increase their profits by advertising enticing claims of privacy.
And this is not just about domestic criminal investigations. What happens when the U.S. military captures or kills the next global terrorist, locates his phone and acquires … nothing.
This is not an issue of government overreaching into the private lives of citizens, as some make it out to be. No smartphone or other device can be accessed by law enforcement without a search warrant issued upon probable cause assessed by a neutral magistrate.
This isn’t about privacy, and it shouldn’t be about profits. It’s about the safety of American citizens and others around the world.
Congress can stop this serious public safety risk tomorrow by its inherent powers under the Commerce Clause of the Constitution. The time to act is now.
Hennepin County Attorney Mike Freeman and Dakota County Attorney James Backstrom are both members of the board of directors of the National District Attorneys Association.