Privacy Vs. Security

By | Updated May 27, 2016 7:21 PM UTC

First the world learned that the U.S. was sucking up phone records of hundreds of millions of people, along with e-mails and texts. These revelations, leaked by former government contractor Edward Snowden in 2013, showed how the widespread adoption of technology laid the groundwork for data collection on a previously unimaginable scale. Now the government has turned its sights to encryption meant to protect data. This has revived debates over the sometimes conflicting goals of law enforcement and privacy in an age of rising terrorism.

The Situation

After the U.S. Federal Bureau of Investigation seized an iPhone used by a shooter involved in a terrorist attack in December, the agency was initially unable to crack its password protections. A federal judge ordered Apple to create new software to get past this encryption. Apple refused, saying this could threaten the data security of all its customers. The FBI dropped the case after it bought a hacking tool from an outside entity to unlock the phone. But the issue isn’t going away. There are other iPhones that federal law enforcement officials want Apple’s help to access. And many technology companies began to add encryption to their products and services after the revelations from Snowden elevated privacy concerns. The FBI has doubled its funding request to $69.3 million this year for tools and personnel to access and decrypt data to reduce its risk of “going dark.” In October 2015, revelations about U.S. data surveillance prompted the European Union’s highest court to strike down a 15-year-old “safe harbor” agreement that had allowed American companies to transfer European users’ commercial data to the U.S. In response, the U.S. agreed to strengthened protection for EU citizens. In May, Brazil temporarily blocked Facebook’s WhatsApp messaging service for the second time in five months for failing to turn over data in a criminal investigation. 

The Background

The U.S. Constitution established the rights of law enforcement officials to search homes and property with court permission. A Supreme Court ruling from 1979 cemented their rights to reach out to phone companies and determine what calls were made from someone’s phone; no warrant was needed unless the police also wanted to listen in. In the 1990s, the FBI and others began using simulators of cell phone towers, now known as Stingrays, DRTboxes or dirtboxes, to glean data to locate mobile users and intercept their voice and text communications. Then after 9/11, the National Security Agency expanded its surveillance programs, including collecting phone records of millions of innocent Americans. Snowden’s leaks about this included details of a program known as Prism, in which the U.S. used court orders to compel companies to turn over customers’ texts and e-mails. After public outcry, Congress voted to stop the NSA’s collection of bulk records in 2015. Under the new system, phone companies store call records that investigators can request with court warrants.

The Argument

FBI Director James Comey has noted that the Constitution’s provisions for searches “couldn’t have imagined any box or storage area or device that could never be entered.” The fact that the FBI was ultimately able to get past iPhone encryption could deal a blow to customers’ faith in Apple’s ability to protect their information. U.S. courts and state legislatures are now wrestling with limits to Stingray surveillance, which law enforcement agencies have worked hard to keep secret. Meanwhile, critics have questioned the usefulness of mass data collection. An advisory panel appointed by Obama concluded in 2013 that the NSA’s phone records program “was not essential to preventing attacks.” The public is torn over the balance between security needs and privacy rights, according to polls in the U.K. and U.S. A quarter of Americans who knew about the government’s surveillance programs have already changed the way they use their phones, the web, email and texts.

The Reference Shelf

  • Congressional Research Service report: “Encryption and Evolving Technology: Implications for U.S. Law Enforcement Investigations.”
  • Scientific American article: “What Is the Big Secret Surrounding Stingray Surveillance?”
  • American Civil Liberties Union report: “How the NSA’s Surveillance Procedures Threaten Americans’ Privacy.”
  • Bloomberg news report: “The Behind-the-Scenes Fight Between Apple and the FBI.”

First published Jan. 23, 2014

To contact the writer of this QuickTake:
Chris Strohm in Washington at cstrohm1@bloomberg.net

To contact the editor responsible for this QuickTake:
Anne Cronin at acronin14@bloomberg.net