Proposal calls on Congress to require smartphone makers to unlock encrypted communications

Manhattan DA calls proposed law ‘bare minimum'

WASHINGTON, D.C. - Congress should force smartphone manufacturers to unlock and share criminal suspects’ encrypted communications with law enforcement officers armed with a search warrant, according to a proposal outlined Wednesday by Manhattan District Attorney Cyrus Vance.

“In the past, criminals may have kept their evidence of their crimes in file cabinets, closets and safes. But today that evidence is more often found on their smartphones,” Vance said in remarks at the Cybercrime Symposium at the Federal Reserve Bank in New York. 

Apple and Google smartphones now come with full-disk encryption and law enforcement officers can no longer access what might be valuable evidence in a criminal investigation. Even Apple and Google can’t get to the encrypted data if they do not have the user’s passcode.

[RELATED: Terrorist attacks renew pressure to unlock encrypted messages]

It has become a controversial and complex issue on how to balance privacy with public safety. “The line between an individual’s rights to privacy and the legitimate needs of law enforcement to protect the public should not be drawn by two private companies who make smartphones. That line needs to be drawn by legislators and by the courts,” Vance said.

A report released by Vance titled “Smartphone Encryption and Public Safety” said the proposed statute "would not require new technology or costly adjustments.”

The report also notes that "between September 2014 and last October, the Manhattan District Attorney's Office was unable to execute approximately 111 search warrants for smartphones because those devices were running" Apples iOS8, which has full encryption.  

The Manhattan DA emphasized, “We do not want a back door. We do not want a back door for the government. We do not want a key held by the government. And we do not want to collect bulk data on anybody. The proposal represents a bare minimum for us to continue critical investigations within the rule of law.”

[RELATED: Encrypted evidence is increasingly hampering investigations]

FBI director James Comey, who gave the keynote address at the symposium, underscored the need for access and cooperation with Silicon Valley firms. “In a so-called post-Snowden world, a wind has blown that has chilled cooperation sometimes across the divide between the government and the private sector. We have to resist that by pushing what might have been cynicism back to skepticism.“

Privacy advocates, however, maintain that investigators have other tools at their disposal to solve crimes and do not need access to encrypted data. And Apple’s CEO Tim Cook, a fierce defender of privacy, has explained on the company’s Website “we respect your privacy and protect it with strong encryption.”

Google and Apple declined to comment on Vance’s proposal.

[RELATED:  FBI opens new chapter in war on encryption]

Comey also said that access to encrypted communications would be a valuable tool in fighting terrorism. Referencing ISIL, the group believed to be responsible for the Paris attacks, he said, they have been "recruiting through social media, and if they find a live one, they move them to Twitter direct messaging, which we can get access to with judicial process. But if they find somebody they think might kill on their behalf, or might come and kill in the caliphate, they move them to a mobile messaging app that’s end-to-end encrypted. And at that moment the needle we’ve been searching the entire nation to find and have found, goes invisible to us.”

As a result of the Paris attacks, "every law enforcement entity in every major city around the world is intensifying its initiatives against terrorism," Vance said. "Every tip is going to be investigated to the fullest, every lead is going to be followed. But every time one of those trails leads to an encrypted cell phone it may go cold."

Vance's proposal seeks to keep the trail warm for law enforcement agencies by placing pressure on the mobile device industry through congressional action.

"I have no higher public policy priority than to persuade our legislators in Congress to enact sensible statutes that protect legitimate privacy concerns, while giving at the same time law enforcement the ability to access data when it’s necessary to prosecute crime and fight terrorism and other serious offenses," Vance said.

If you have a tip or an update about encryption’s impact on investigations, email mark.greenblatt@scripps.com.

Phil Pruitt, director of digital content, contributed to this story.