Steven Groschen, MJLST Managing Editor
The New York State Senate is considering a bill that requires manufacturers and operating system designers to create backdoors into encrypted cellphones. Under the current draft, failure to comply with the law would result in a $2,500 fine, per offending device. This bill highlights the larger national debate concerning privacy rights and encryption.
In November of 2015, the Manhattan District Attorney’s Office (MDAO) published a report advocating for a federal statute requiring backdoors into encrypted devices. One of MDAO’s primary reasons in support of the statute is the lack of alternatives available to law enforcement for accessing encrypted devices. The MDAO notes that traditional investigative techniques have largely been ineffective. Additionally, the MDAO argues that certain types of data residing on encrypted devices often cannot be found elsewhere, such as on a cloud service. Naturally, the inaccessibility of this data is a significant hindrance to law enforcement. The report offers an excellent summary of the law enforcement perspective; however, as with all debates, there is another perspective.
The American Civil Liberties Union (ACLU) has stated it opposes using warrants to force device manufacturers to unlock their customers’ encrypted devices. A recent ACLU blog post presented arguments against this practice. First, the ACLU argued that the government should not require “extraordinary assistance from a third party that does not actually possess the information.” The ACLU perceives these warrants as conscripting Apple (and other manufacturers) to conduct surveillance on behalf of the government. Second, the ACLU argued using search warrants bypasses a “vigorous public debate” regarding the appropriateness of the government having backdoors into cellphones. Presumably, the ACLU is less opposed to laws such as that proposed in the New York Senate, because that process involves an open public debate rather than warrants.
Irrespective of whether the New York Senate bill passes, the debate over government access to its citizens’ encrypted devices is sure to continue. Citizens will have to balance public safety considerations against individual privacy rights—a tradeoff as old as government itself.