The next avenue in the battle between the technology companies and the FBI over encrypted communications is going to be a lot more messy and legally complicated than trying to get into a terrorist’s iPhone. According to the Federal Bureau of Investigations, messaging tools such as Facebook Inc.’s WhatsApp and other similar internet services that encrypt the content of phone calls, texts and other data automatically while they are being sent has become an increasingly difficult problem for criminal and national security investigations. The agency says that it is essential for them to capture the information during transit. However, privacy advocates believe this is too quick whereas companies completely oppose this idea.
The Justice Department is being sued by the Electronic Frontier Foundation in San Francisco over whether any secret orders have been used by the government for forcing technology companies to decrypt the private communications of their clients. A staff attorney of the foundation, Andrew Crocker said that they were simply waiting for the next big case that would bring up the issue. Also, the threat posed by encrypted applications cannot be deemed as theoretical even though legal strategies are developed in the US. Supporters of al-Qaeda and Islamic State in Arabian Peninsula have already found a way to potentially limit intelligence gathering on terrorist plots by using alternatives of US-based apps.
Although the FBI was able to figure out a way to resolve the locked iPhone issue it was facing in two high-profile cases, law enforcement agencies have to deal with unique and complicated legal challenges for compelling companies to let them access encrypted communications. These barriers also pertain to the laws that were written nearly two decades ago when the concept of internet had just emerged. The players involved in this debate are outlining their position and the results of these cases is going to define the rules for digital rights for years to come.
While law enforcement agencies such as the FBI are free to obtain court orders to compel companies to accept wiretap orders, there are still two issues remaining, which make it difficult for the agencies to get their hands on the data they are after. First, the investigators are far behind the rapid technological advancements. For intercepting any communications, they have to resort to laws that restrict their reach like the 1994 Communications Assistance for Law Enforcement Act. Secondly, there is the issue of encryption as users now have the ability of protecting their data with it.
Only the user knows the secret key to unlock the data and even companies cannot provide it to law enforcement agencies because it is scrambled. Michael Hayden, the former CIA and NSA Director said that the US intelligence and law enforcement agencies will have to deal with the fact that strong encryption will protect the content of their communications. He said that instead of trying to prevent it or slow it down through legislation, it is better to find other ways to do their jobs in the absence of information collection.