Smart phone encryption: is it protecting consumers and criminals?

"The device has a story to tell we just have to listen.” Listening is Cody Breunig's specialty. “The majority of my investigations led to dealing with computers, whether it was a cell phone, GPS device, any type of electronic device capable of storing data.” Breunig, who spent six years as a police officer in Victoria, is not a Senior Forensic Examiner at Flashback Data.

“Whenever you are dealing with a child, it can be extremely taxing," he says referring to a case that permanently etched in his mind. "His cell phone was locked and we couldn't get into it but when we were able to finally get into it, crack that device if you will, we listened to the story it had and it was very truthful.”

Truthful and integral, he says, to the case. The man he's referring to, thirty one year-old Jason Paul Tijerina arrested last January for exposing himself to a three year old. He pleaded guilty and is now serving thirty years in a federal prison.

“The relief that comes when you get into those devices and you find the evidence that you need, it's powerful, it's moving,” says Breunig

Breunig now spends his days working helping local law enforcement agencies around the country helping them retrieve critical information that's not so easily accessible.

“You have to dive deep into those devices that hold information about them because that can become your witness,” he explains, adding, “every device for the most part has some sort of chip on it or storage on it that holds that information. But the reality is it's not going to be encrypted on here,” pointing to an Android device, “whereas on Apple it is encrypted."

That means the information is protected. And in later model iPhones and their newer operating systems, unless you have the password or a backup, it will be nearly impossible to get into them. Apple says they've put those measures in place because of the unprecedented demand from the public to prevent hackers and the government from accessing their data. Android phones are quickly moving in that direction too.

"We have a couple of pending homicide cases where we believe there is evidence available on a phone that we just can't get into because of the encryption,” says Travis County Assistant District Attorney John Lopez.

He believes the new technology is becoming a road block in their pursuit for justice "It used to be that some of the providers you could send the device to them physically along with the search warrant and they would be able to unlock it but the newer operating systems don't have that feature anymore"

Apple confirmed that in late October in a brief they filed in Federal Court. It’s a response to the Justice Department's request to force the tech giant to help law enforcement access seized phones. According to court documents, Apple claims that ninety percent of their devices are running IOS8 or higher.

"You can't force someone to give you their passcode or their password to their device and if they aren't willing to voluntarily provide it,” says Lopez.

The head of the Austin Police Department’s Digital Forensics Unit Sergeant Rick Shirley agrees. “It's very challenging from the standpoint of frustration at times that there's information that we cannot immediately get to hand over to the lead investigator."

Local agencies though aren't the only ones frustrated with the evolution of encryption. FBI Director James Comey has been a vocal opponent of going dark. He’s given numerous speeches on the topic, including one last year Brookings Institute. “Unfortunately, the law hasn't kept pace with technology,” he said, adding, “this disconnect has created a significant public safety problem."

“The companies are obviously trying to prevent hackers from being able to access people's property,” Shirley says, “but in the same sense it's also creating problems from the standpoint of our ability to do that and analyze and provide results from the analysis of those devices."

And while those problems will probably grow, Lopez says, “we have to acknowledge that they are an integral part of people's everyday lives.”

“Forensics today is not going to be the same as it is 7 years,” Breunig says adding, it won’t be easy to stay ahead of the criminals, they can try to stay ahead of how they’ll erase the crime, “I wouldn't say impossible that's why we exist."

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