NYC’s Top Prosecutor Is Doing Opposition Research on Encryption

The prosecutor's office in New York wants to know exactly how many times cops have gotten stuck in their investigations because of encryption—and hopes an online survey can provide that answer.

Whether encryption hampers police investigations, obviously, has become the talk of the town in the last couple of weeks, after the FBI ordered Apple to help get past the encryption on the iPhone of one of the San Bernardino shooters by disabling a series of security features that would allow investigators to hack into it.

Is encryption really making cops and feds "go dark," making some investigations go nowhere, like the FBI has been arguing for years? Despite loud complaints and doomsday scenarios trotted out by police authorities, there's very little evidence that's true.

But to prove it, the Manhattan District Attorney's office quietly put out a questionnaire last fall using the online platform Survey Monkey. The survey was made with the goal of compiling "statistics on the national scope of the problem," according to a district attorney's spokesperson, who explained that it was created for the International Association of Chief of Police conference in Chicago.

The survey didn't get much attention, but it was spotted and tweeted out by Declan McCullagh, a former CNET reporter who now works on a news app called Recent News.

The survey consists of nine questions, from "Are you familiar with Apple's new policy on smartphone encryption that was launched in September 2014" to "In what types of cases has your investigation/prosecution been impeded by Apple's encryption practices?"

Curiously, if the answer to the previous question ("Have you encountered a smartphone, or other device, that you have been unable to get into because of encryption?") is "no," you still have to answer in what type of cases encryption was an impediment. In other words, no isn't really an answer.

The Manhattan DA spokesperson declined to explain why that is, and also declined to say when, and if, the results of the survey will ever made public.

Also, bizarrely, this survey is open to anyone with the link, not just law enforcement agents. (In fact, I myself filed and submitted the answers, and you can do the same!) The Manhattan DA spokesperson, however, claimed that the submissions are "independently verified" by the DA office, but declined to provide any specifics on how they make sure they come from real agents.

"The Manhattan DA's Office has no problem weeding out impersonators from real members of actual law enforcement agencies," spokesperson Joan Vollero told Motherboard in an email.

In other words, just trust us™.

Update, 4:32 p.m. ET: Manhattan DA Office spokesperson Joan Vollero disputed that the questionnaire was put out quietly, explaining that it was posted publicly on the DA's official website and it was sent to the "15,000" attendees of the police conference.