DA says Apple is crippling investigations across the country

Manhattan DA: Apple, Google serving economic self-interest
Manhattan DA: Apple, Google serving economic self-interest

New York's top prosecutor says that Apple's encryption is hindering criminal investigations everywhere.

"Apple's encryption policy frustrates the ability of law enforcement to prevent, investigate, and prosecute criminals, including the very hackers that Apple claims it wants to protect users against," Manhattan District Attorney Cyrus Vance wrote in prepared testimony set to be delivered at a House Judiciary Committee hearing on Tuesday.

Vance said iPhone encryption "cripples even the most basic steps of a criminal investigation," and it also prevents law enforcement from exonerating innocent people suspected of crimes.

Though Apple has chosen to fight the FBI in a very high-profile case of terrorism, Vance noted that state and local officials handle 95% of all criminal prosecutions in the United States. They deal with all sorts of criminals.

For example, Vance said his office has been frustrated in prosecuting three attempted murder suspects, people accused of sexually abusing a child, child pornographers, people charged with assault, robbers, and identity thieves among others.

Since Apple began encrypting iPhones by default in September 2014, Vance said his office has been locked out of 175 iPhones, or one quarter of the 670 Apple devices that his office's Cyber Lab obtained from suspects. In each of those cases, his office had a valid search warrant to obtain the information on the suspects' phones.

Related: Here's what it would cost Apple to help the FBI

Vance said that he personally values his privacy and is a fan of encryption. He also said that he sympathizes with those who see daily headlines about massive security breaches. He acknowledged that people are wary about data collection following revelations by Edward Snowden that the government has been collecting information about citizens in bulk.

But he called Apple's encryption a false answer to those concerns.

"I understand there is a fear arising out of mass security breaches, collection of bulk data, and warrantless surveillance," Vance said. "But that is not the access state and local law enforcement seek or expect."

The primary issue, Vance argues, is whether prosecutors should be allowed access -- with a warrant -- to information that people are now primarily storing on their smartphones. He acknowledges that prosecutors were able to convict criminals before the invention of smartphones, but he said that was during an era of physical storage.

People used to keep secrets in safes, which could be broken into with brute force. Now, people keep secrets in smartphones, which, like San Bernardino shooter Syed Farook's iPhone, can be set to self-destruct after just 10 wrong passcode guesses.

"IPhones are now the first consumer products in American history that are beyond the reach of Fourth Amendment warrants," Vance said. "Accessing evidence on smartphones is now so critical .... Investigating a case without access to this evidence is doing so with one hand tied behind our backs."

Vance also called into question the value of Apple's encryption. Even before iPhones were encrypted, he said law enforcement still needed to send iPhones to Apple to extract data from suspects' phones.

To break into an unencrypted, but locked iPhone, he said that a hacker would need to have possession of the phone -- and Apple's key -- in order to bypass the lock.

"It is not entirely clear what cybersecurity problem Apple's new encryption is intended to solve," Vance said. "We have enabled Apple and other technology companies to upset the balance between privacy and public safety established by centuries of jurisprudence."

Apple (AAPL), which will be represented by its general counsel, Bruce Sewell, at the hearing, has argued that hackers and governments are becoming more proficient at breaking into phones. Encryption that even Apple can't unlock could prevent, for example, the Chinese government from forcing Apple to unlock a phone owned by a Chinese dissident.

In its case against the FBI, Apple has cited the First Amendment in its argument that the government cannot force it to create a software program to bypass Farook's passcode.

Also testifying are FBI Director James Comey and cybersecurity professor Susan Landau.

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