Academic journal article The William and Mary Bill of Rights Journal

Private Actors, Corporate Data and National Security: What Assistance Do Tech Companies Owe Law Enforcement?

Academic journal article The William and Mary Bill of Rights Journal

Private Actors, Corporate Data and National Security: What Assistance Do Tech Companies Owe Law Enforcement?

Article excerpt

INTRODUCTION.....................................408

I. AN UNSATISFYING STATUTORY LANDSCAPE......................................411

A. CALEA: An Explicit Imposition of Duty......................................413

B. Apple and the FBI Meet the All Writs Act......................................417

II. SHOULD CALEA BE AMENDED?......................................422

A. Necessity and Futility......................................423

B. Security......................................425

C. How Congress Might Move Forward......................................428

III. WHAT SHOULD A DUTY TO ASSIST MEAN?......................................430

A. The Duty to Assist......................................430

B. What Do We Do About Warrants?......................................432

C. Reconstructing an Inviolable Zone of Privacy......................................433

CONCLUSION......................................436

INTRODUCTION

When the government investigates a crime, do citizens have a duty to assist? This question was raised in the struggle between Apple and the FBI over whether the agency could compel Apple to defeat its own password protections on the iphone of one of the San Bernardino shooters.1 That case was voluntarily dismissed as moot when the government found a way of accessing the data on the phone.2 However, the issue remains unresolved, even as the government has asked Apple to unlock other iPhones,3 and Apple continues to refine its encryption technology.4

Because of advances in technology, software providers and device makers have been able to develop almost impenetrable protection for their customers' information, effectively locking law enforcement out of accounts and devices, even when armed with a search warrant.5 Most privacy watchdogs, understandably shaken by Edward Snowden's revelations of NSA spying, argue that this is an unadulterated good.6 The prosecutorial view is that this is an unprecedented interference with lawful investigations.7

In the early 1990s, when telephonic communications were moving from copper wire based technology to fiber optics, the government faced a similar challenge. Because of the change in interception technology, it could no longer conduct wiretaps and obtain pen registers without assistance from the telephone company.8 The issue was resolved by the passage of the communications Assistance for Law Enforcement Act (CALEA), enacted in 1994.9 CALEA placed an affirmative duty on "telecommunications carriers" to ensure that, regardless of how their technology evolved, they retained the ability to assist the government with lawful interceptions.10

The challenge of encryption and unbreakable smartphones has updated this issue for today. Until recently, encryption might have only been used by the kinds of highly motivated, sophisticated actors who were capable of developing or seeking it out themselves; they are unlikely to be affected by even a total ban on encryption.11 But now, even low-tech people (like your narrator) are using encryption simply by virtue of having a relatively new iPhone, as "firms have begun incorporating very powerful encryption features into mass-market consumer-grade products and services."12

Now, practically unbreakable encryption is the norm, as Apple and Google have made it standard on all devices since 2014.13 Apple has staked its reputation on this publicly, announcing that for all iPhones running iOS 8 and higher, the company "will not perform iOS data extractions [in response to government search warrants] as data extraction tools are no longer effective."14 Apple never explained the irony of it being unable to extract data through its own actions. But while Apple may bear some responsibility for creating a system that it could not access itself, does that mean that the corporation should be statutorily tasked with undoing it?

This Essay takes the question of whether CALEA should be amended (or a new statute passed) as a starting point for a broader exploration of what assistance the government can justly ask of its citizens. …

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