MIT Tech Review Tries To Blame Apple Encryption For Wrongful Arrest

Brian Bergstein should know better. As the executive editor of the MIT Technology Review with fifteen years of technology journalism under his belt, he really shouldn't be asking "What if Apple is Wrong?" -- at least not in the way he does. Bergstein glosses over the security implications of requiring phone manufacturers to hold the decryption keys for devices and services and instead presents his argument as an appeal to emotion. Those on Apple's side -- including Apple CEO Tim Cook -- are given only the briefest of nods before alarmists like Manhattan District Attorney Cy Vance are given the stage. Bergstein does at least ask an interesting question: what if exonerating evidence is locked up in a phone? But his test case for "What if Apple is wrong?" doesn't apply as well as he seems to hope it does. Devon Godfrey was killed in his apartment in 2010 -- and police arrested the wrong person. Somehow, Bergstein wants to blame the police screwing up on Apple. Investigators had only a week to pull evidence together to present to a grand jury. Some of that evidence happened to be located on a passcode-locked iPhone. But the evidence ultimately compiled and used has nearly nothing to do with that locked phone.

Cell phones had been found in Godfrey’s apartment, including an iPhone that was locked by its passcode. Arnold recalls doing what he always did in homicides back then: he obtained a search warrant for the phone and put a detective on a plane to Cupertino, California. The detective would wait in Apple’s headquarters and return with the data Arnold needed. Meanwhile, investigators looked more closely at the apartment building’s surveillance video, and Arnold examined records sent by Godfrey’s wireless carrier of when calls and texts were last made on the phones. With this new evidence in hand, the case suddenly looked quite different. From the wireless carrier, Arnold saw that someone—presumably Godfrey—had sent a text from the iPhone at a certain time. But the recipient of that text had used a disposable “burner” phone not registered under a true name. So who was it? The iPhone itself had the crucial clue. Arnold could see that Godfrey referred to the person by a nickname. People who knew Godfrey helped police identify the man who went by that nickname. It was not the man who was originally arrested. It was Rafael Rosario—who also appeared in the apartment surveillance footage. Rosario confessed and later pleaded guilty.

A text message and a contact list, both of which are usually backed up to cloud storage, where they can be accessed without cracking the phone or breaking its encryption. As James Comey himself has pointed out while making an argument against Apple's stance in several ongoing All Writs-involved cases, law enforcement can access iCloud contents without breaking phone encryption.

“Today, Apple encrypts the iCloud but decrypts it in response to court orders,” he said. “So are they materially insecure because of that?” Comey later reiterated this point, saying, “I see Apple today encrypting the iCloud and decrypting it in response to court orders. Is there a hole in their code?”

The frequency of the backups will vary from person to person, but this still gives investigators access to plenty of information supposedly "stored" in an uncrackable phone. From there, the argument against Apple only gets worse, as the arguments themselves are sourced from the sort of people who'd rather see insecure devices than face obstacles when prosecuting suspects. Cy Vance, of course, has argued for outright encryption bans. Vance also loves a good appeal to emotion.

Vance makes no dramatic claims about “going dark,” preferring a measured, lawyerly form of argument. When I tell him that his statistics on inaccessible iPhones don’t yet impress many computer scientists, he makes a facial expression equivalent to a shrug. “Some people have made the determination that not being able to do the kinds of work we do is an acceptable collateral damage,” he says. “I’m not sure how the individual would respond if someone close to him or her were the victim of a crime and the case might depend on the ability to access a phone. Easy to say, unless it’s you. We deal with a lot of victims. We talk to the people it’s actually happened to.”

The assumption is that everyone loves locking cops out of phones until they're a crime victim. But this assertion is just as false as Comey's exaggerated laments about "