If the government wants to listen in on your phone calls, it can. That’s the crux of the Communications Assistance for Law Enforcement Act, enacted in 1994: It requires wireless carriers to keep the possibility open of wiretapping their networks. In 2005, the act was expanded to include VoIP and broadband providers.
But Calea has never been expanded from phone networks to phones themselves, and now phone makers—first Apple (AAPL), then Android—are releasing handsets with encryption that makes it impossible for the handset maker to retrieve data from the phone, warrant or no. The government is not happy. “What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law,” FBI director James Comey said last week. But there’s not much he or other branches of law enforcement can do to stop it, absent some help from Congress.
They may well ask. Almost immediately upon Apple’s announcement, security advocates began wondering aloud how long it would be before policymakers turned their attention to encrypted smartphones. Apple’s critics can argue that Apple’s preexisting security was good enough and that legal protections protect against overreach by law enforcement. ”I suspect that the Department of Justice will lobby Congress quite heavily to force phone makers to create a backdoor,” says Darren Hayes, the director of cybersecurity at the Seidenberg School of CSIS at Pace University and a consultant to law enforcement agencies.
The lawmakers may not be as accommodating as they once were. Revelations about National Security Agency spying have made sanctioned surveillance into a political hot potato: The FBI’s recent push for further technological backdoors in Internet communications seems to have died last year. “Something happened,” recounted Christopher Soghoian of the ACLU at the hacker conference Defcon this summer. “Calea 2, which is the D.C. nickname for this backdoor proposal, for now is dead. It is dead in the water; no politician wants to touch that kind of surveillance for now. So thank you very much, Edward Snowden.”
If the public reaction to Snowden and Operation Prism killed political momentum to expand government power, it also pushed companies such as Apple to develop stronger encryption security in the first place. Assurances that the legal system alone is sufficient to protect privacy seem less credible than they have in the past, and Silicon Valley doesn’t want its reputation to suffer by appearing not to stand up for its users. If government officials are unhappy about this latest turn of events, they have only themselves to blame.