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Does the proposal strike an appropriate balance ?

October 16, 2021
Christopher R. Teeple

As you know from this week’s lecture, there is a proposal in the Senate for a statute (Sources 3- Lawful Access to Encrypted Data Act) which would require companies like Apple to comply with court orders which, in turn, requires these companies to provide law enforcement with data in “intelligible form” if “such data has been made unintelligible by a feature, product or service owned, controlled, created or provided by” the company.
The legislation appears to be designed to address situations where police are authorized to access the contents of particular documents on the phone because: (1) they have a search warrant backed by probable cause; (2) a court has issued a “decryption order” after a judge has determined that ordering the suspect to “decrypt” (e.g. unlock the phone) does not violate the suspect’s 5th Amendment rights; (3) the suspect still refuses to unlock despite the judges order to do so and(4) the phone’s manufacturer (e.g. Apple) says it cannot unlock the phone.
As you probably know, there has been almost universal resistance to efforts by local, state and national law enforcement officials to reach some compromise on the encryption issue. (e.g Sources “3- “Experts – Hands Off Encryption”)
A “report” from the Manhattan DA in November, 2015 is part of the reading for Week 3. This report says, for instance, that in the period between September 17, 2014 and October 1, 2015, the Manhattan DA’s office “was unable to execute approximately 111 search warrants for smartphones because because Apple, which had assisted in the past, now says it is literally unable unlock the phones. The warrants command officers to search for evidence of the crimes of “homicide, attempted murder, sexual abuse of a child, sex trafficking, assault, and robbery.” Manhattan DA Report p.9
Please write a paper critiquing the Manhattan DA’s report (including 2016 -2019 “updates”). Does the proposal strike an appropriate balance ? For instance , will the benefit to law enforcement outweigh the increased risk to the security of data of innocent users? Are the questions proposed for Apple and Google in the Manhattan DA’s report relevant? Does the DA’s proposal meet the concerns of the scientists in the MIT paper that I loaded as “Experts Say Hands Off Encryption” (please focus on the relatively brief section on “data at rest”) Sources – 3? Is the Lawful Access to Encrypted Data Act a better solution (Sources 3)? https://www.manhattanda.org/our-work/smartphone-encryption-and-public-safety/ (Links to an external site.)

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