Locked phones can hinder local crime-solving efforts

Local law enforcement officials say that access to encrypted data is more and more common and thwarts crime-solving efforts. Arguments on the other side question individuals’ right to privacy.

While much controversy has surrounded the FBI’s attempts to get Apple to unlock an iPhone used by one of the San Bernardino attackers, the fight is not isolated.

Lowcountry law enforcement agencies say that lack of access to locked phones is a serious problem they face every day.

“The technology that we now use and take for granted provides some wonderful benefits but also provides the worst kind of criminals a method of hiding,” said Charleston County Sheriff Al Cannon.

Cannon said that without access to key evidence in criminal cases, authorities can lose out on finding suspects even in the most urgent, time-sensitive situations.

“If your child went missing and you had their cellphone and computer with no information and no passcode, how would police go about finding where they are?” he said.

Berkeley County Deputy Chief Mike Cochran said investigators are working a case where they know of videos filmed of criminal acts on a seized phone, but they can’t get past the lock to retrieve them.

“And that’s a problem,” Cochran said, not only for investigations but also prosecution. “Criminals know how the rules work. They know how to play the game.”

Other cases that involve “going dark,” or criminals using technological innovations to hide from law enforcement, include the storage of child pornography and communications of all types, such as planning an underage keg party, making threats or coordinating a drug-trafficking operation.

Cannon and David Thomas, FBI special agent in charge in Columbia, explained that authorities aren’t asking for access to everyone’s communications. They need a way, they said, to access technology the same way they would access physical belongings with the proper court authority, such as a warrant.

An example Thomas used was a safety deposit box at a bank, for which only the owner of the box has a key. He said that with a warrant, law enforcement could drill a hole into one box without the bank worrying about the security of the other boxes.

iPhones and other password-protected devices, along with encrypted applications, are essentially warrant-proof.

“We try to make it a complicated issue, and it really isn’t,” Thomas said. “The law hasn’t progressed with technology.”

The FBI has asked Apple to create a software that allows them to bypass a security feature that wipes a phone’s data after so many password attempts and restores them to factory settings.

Unlike safety deposit boxes, Apple’s position is that if the security of one iPhone is compromised, the security of all is likely compromised. The company has said that creating the software the government is asking for would make iPhones more vulnerable to future attacks.

Arguments in their favor are largely based on that same fear, that a “back door” would lead to the U.S. government, foreign governments, and hackers taking advantage of anyone and everyone’s data.

“We as people in society are thinking very seriously about security now,” said Seth Stoughton, assistant professor of law at the University of South Carolina.

Stoughton said it was also good business for Apple to take a stand because it markets a level of privacy and security that could be degraded if a precedent is set, which could be alarming to customers.

Others argue that the government’s request to Apple is a violation of individuals’ right to privacy and could lead to requests of other companies to release secure data. Shaundra Scott, executive director of the American Civil Liberties Union of South Carolina, worries about a slippery slope of privacy violations.

“Probable cause to me is a subjective term,” she said. “Anyone can create probable cause out of any situation. With a back door, every individual would have to be on notice that they could have to give up their phone.”

There is one thing, though, that local law enforcement and their opponents agree on: The time for conversation is now.

“I think most times, people don’t get concerned until a law has passed and then it’s reactive,” Scott said.

Stoughton said he believes there are “plausible, non-frivolous arguments on both sides.” He warned that it could be awhile before there is any solution.

“The law is sort of a slow boat to turn,” he said. “We’re still in the process of figuring it out and I think it’s going to be that way for a long, long time.”

The Associated Press contributed to this report. Reach Melissa Boughton at 843-937-5594 or at Twitter.com/mboughtonPC.