Rosenblum Schwartz & Fry
314-499-1424

Black eye for FBI in agency assertions re phone encryption threat

Criminal investigators in Missouri and nationally will not fail to zero in on an individual’s smartphone when they suspect that person of having engaged in unlawful activity. Law enforcers view such devices as rich troves of information that can prove important during jury deliberations or in a judge’s sentencing decision.

In fact, evidence housed in a phone that can be lawfully accessed and used in court can absolutely make a prosecution’s case. That renders smartphones a focal point of scrutiny for police departments and investigatory task forces.

They have certainly been a bulls-eye target for the FBI in recent years, with the agency consistently stressing a national threat posed by software that blocks their access to digital data.

What the FBI specifically underscores is the unavailability of evidence that it contends should be available to it after the agency secures a valid search warrant. Increasingly, encrypted software denies it access to information it says it has a lawful right to see and hear.

The bureau has taken that complaint public in a major way over the past couple years, prominently stressing that nearly 8,000 phones it lawfully possesses have encryption features installed that deny its agents access to data. They say that what they call the “Going Dark” problem poses an alarming security threat to the public. The agency wants what is in essence a digital key to unlock data on phones that it has been given court permission to access.

Seemingly, the FBI is materially undermining its own cause and campaign to enlist public sympathy through a sustained campaign of misinformation.

To wit: the agency’s estimate on problematic phones has proven to be stunningly off the mark. In fact, agency principals now admit that the many thousands of devices they spotlight as being connected to crime and impenetrable to searching are flatly nonexistent.

In fact, the number cited could be off the mark by a tenfold margin; not long ago, the FBI itself claimed that fewer than 900 phones in its possession could not be accessed.

High-ranking FBI officials say that the false data supplied the public owes to simple error rather than bad motives aimed at deception.

Privacy advocates counter that the huge variance between fact and fiction warrants even further privacy protections for the American public and ramped-up opposition to agency attempts to access consumers’ proprietary information.

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Rosenblum Schwartz & Fry

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