Major Opponent of Phone Encryption Still Expects Congress to Roll the Technology Back

Will the next president and Congress force Apple and Google to redesign their phones?

For more than a year, the top prosecutor in Manhattan, Cyrus Vance Jr., has been warning that fully encrypted smartphones prevent police from carrying out search warrants, inhibiting investigations into such serious crimes as murder and sexual assault. Despite general support from President Obama and some sympathetic lawmakers, however, there appears to be no momentum for legislation that would do what Vance would like: force smartphone makers to go back to making data on phones accessible to investigators with warrants (see “What If Apple Is Wrong?”).

But Vance said Wednesday at EmTech MIT 2016 in Cambridge, Massachusetts, that he is confident lawmakers will eventually realize that it makes little sense for smartphones to automatically obscure the kinds of evidence—notes, calendar entries, contacts, correspondence—that are available to investigators (and defense attorneys) if they are in physical form or on other digital platforms.

“By no means is this issue over and done with,” he said. “Were there to be some significant act that occurred that demonstrated there was communications in cell phones that we were not able to access but otherwise could have, I think that absolutely can have a galvanizing effect on Congress. And by the way, if something like that happens, I think the swinging of the pendulum may be much harder and faster back than it necessarily should be. And that’s why I think tech and government should sit down and, with the guidance of Congress, work this out.”

For now, he argues, people may not fully grasp how the technology constrains local police, mainly because there is no centralized tally of how many unsolved cases could be affected by evidence trapped inside phones. And the most high-profile fight over this technology, when the FBI wanted access to an iPhone used by a mass shooter in San Bernardino, California, ended anticlimactically last winter when the bureau found a way to hack the phone.

Before 2014—when Apple switched to full-disk encryption, in which the user’s passcode is the only key—the company routinely opened devices for investigators with search warrants. (That is still possible on many Android devices that do not employ the technology, and investigators can get into iPhones and iPads even today if they are told the passcode or can guess it.) Since Apple made the change, Vance says, his office has been unable to carry out search warrants on about 400 iPhones and iPads.

Critics of Vance’s stance argue that investigators should focus on adapting to fully encrypted smartphones rather than trying to roll back the technology. They argue that investigators generally have many other ways of getting the evidence that exists on phones, including accessing it from unencrypted backups in the cloud.

But Vance says those other avenues are not as fruitful as you might assume, largely because people don’t always back everything up. He said his office has resolved only about one-fourth of the 400 cases in which it has been unable to carry out search warrants for Apple devices.

Is the social cost of those unsolved cases something we should accept, in exchange for the greater computer security we gain from having smartphones that even Apple itself can’t unlock? Vance insists that should still be up for debate: “How do we default that decision to a private company who’s interested principally in selling billions of phones?”