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The Latest Argument Against Apple's New Encryption: It's for Perverts

If Apple and Google have their way, perverts will win, prosecutor says.
Image: Nick Carter/Flickr

American government officials' renewed war on encryption just got a little zanier.

After more than six months of complaints, we know US government officials, including the FBI director, President Barack Obama, as well as the head of the NSA, are not happy about Apple's decision to turn encryption on by default on its new iPhone operating system, which makes it technically impossible for Apple to access the data the request of the police.


We also know that, in practice, they're asking for impossible solutions, using fear mongering and hyperbolic statements such as "encryption threatens to lead us all to a very dark place," or simply misleading or wrong examples to support their arguments.

But a Massachusetts prosecutor, who is scheduled to testify at a House hearing on encryption on Wednesday, is taking the arguments a step further into bizarre territory.

If encryption becomes widespread, according to Daniel Conley, the Suffolk County District Attorney in Massachusetts, perverts that take surreptitious pictures of women's intimate parts on public transportation—also known as "upskirting"—will never be prosecuted.

A Massachusetts prosecutor is taking arguments against encryption a step further into bizarre territory.

"If the offender's phone can't be searched pursuant to a warrant, then the evidence won't be recovered and this practice will become absolutely un-chargeable as a criminal offense," Conley, who is also a board member of the National District Attorneys Association, will tell the House Committee on Oversight and Government Reform, according to the written testimony he submitted ahead of the hearing.

Conley, however, doesn't mention that the pictures might be in the pervert's cloud storage (phones sometimes have cloud backups turned on by default), which would potentially put them at the reach of police forces. He also doesn't explain how often his district prosecutes these types of cases.


But this is far from the only questionable claim in Conley's written testimony, however.

The prosecutor also said that if phone encryption had been widespread at the time of the Boston bombings, history might have played out differently.

With widespread encryption, "the apprehension of those responsible for the Boston Marathon bombings would have been very much in doubt."

"Were law enforcement blocked from obtaining [phone] evidence, or if other companies were allowed to make their own determinations as to what video or other evidence law enforcement was and was not permitted to see," Conley argues, "the apprehension of those responsible for the Boston Marathon bombings would have been very much in doubt."

The truth, however, is far from Conley's speculation.

In fact, Dzhokar Tsarnaev did use encryption. He used it on his computer, but the technology was exactly the same: it made it harder for anyone to access the data stored on his laptop.

Yet investigators were able to get in because, as it turns out, Tsarnaev was bad at passwords—just like the rest of us. The one he chose to encrypt and (in theory) lock down his computer was "AllahuAkbar1"—an easy one to crack—according to a digital forensics consultant who testified at Tsarnaev's trial on Tuesday.

This example proves, once again, that encryption by itself is not necessarily an insurmountable hurdle for law enforcement. As technologist and encryption experts have repeated over and over in the last few months, there are many ways cops can still get the data they need, whether it's against terrorist or perverts, while preserving the ability for regular people to protect their communications and privacy with encryption.