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By Susan Hoffman
Current technology presents law enforcement with a difficult challenge. Gathering criminal evidence quickly can often make a crucial difference in the apprehension of criminals and the safety of crime victims. However, getting that evidence from smartphones, tablet computers and other electronic devices is tricky, especially for communications that occur in real time.
The FBI refers to this issue as the “Going Dark” problem. According to the FBI, “Law enforcement at all levels has the legal authority to intercept and access communications pursuant to court orders. But it often lacks the technical ability to carry out those orders because of a fundamental shift in communications services and technologies.”
The FBI adds, “Law enforcement faces two distinct Going Dark challenges. The first concerns real-time court-ordered interception of data in motion, such as phone calls, e-mail, text messages, and chat sessions.
“The second challenge concerns ‘data at rest’ — court-ordered access to data stored on devices, like e-mail, text messages, photos, and videos. Both real-time communications and stored data are increasingly difficult for law enforcement to obtain with a court order or warrant. This is eroding law enforcement’s ability to quickly obtain valuable information that may be used to identify and save victims, reveal evidence to convict perpetrators, or exonerate the innocent.”
The Battle for Digital Privacy Has Already Begun: Apple Confronts the FBI
In our society, maintaining public safety is obviously a major concern. But does that mean that all privacy on our electronic devices will need to be sacrificed? What are the standards we should use to determine if we are properly justifying the invasion of someone’s digital privacy or serving the cause of justice?
A few years ago, the FBI needed Apple to unlock an iPhone belonging to a terrorist involved in an attack in San Bernandino, California. Apple refused, saying that while the company was willing to help law enforcement efforts, the FBI should not demand that Apple build a backdoor into its phones because it would set a dangerous precedent. Eventually, the FBI was able to unlock the terrorist’s iPhone without Apple’s help.
How Will We Solve the ‘Going Dark’ Problem?
It’s no secret that attackers can harvest information from any content we put onto computer networks or infect our electronic devices. Companies also face insider threats. There is clearly a constant need for strong data encryption to maintain the privacy of individuals and businesses.
As David Gurle and Bill Harrington of TechCrunch note, “The challenge for law enforcement, and for us as a society, is how to reconcile the advantages of gaining access to the plans of dangerous individuals with the cost of opening a door to the lives of everyone else. It is the modern manifestation of the age-old conflict between privacy and security, playing out in our pockets and palms.”
It appears that the battle between data privacy, homeland security and public safety will continue for a long time. Although various answers have been proposed to solve the “Going Dark” problem, further efforts will be needed to create workable solutions that will satisfy the needs of the public, law enforcement, and technology companies.
Perhaps the best way to ensure that privacy isn’t breached without due cause or due diligence is to make well-informed judgments on a case-by-case basis.
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