(Source: Avii/Dreamstime)
Director says he's going to "sit down" with legal representatives of America's top two mobile firms

Google Inc. (GOOG) long included the option to encrypt your local storage.  But with Android L it is expected to for the first time default to that option, strengthening privacy protections for the millions of users who were unaware of the feature or forgot to enable it.  Apple, Inc. (AAPL), which lacked optional encryption of its user files in past versions of iOS, not only added it but made it the default in iOS 8, beating Google to the punch at least.  But the message from both of America's too largest mobile firms is united -- privacy deserves protection.

The U.S. Federal Bureau of Investigation (FBI) would beg to differ.  It is very concerned that protecting privacy could interfere with its ability to search citizens at whim.  Its Director James Comey stated on Thursday that he feared that by allowing citizens digital privacy Google and Apple are teaching users that they're "above the law".

FBI Director James Comey
FBI Director James Comey [Image Source: Bloomberg]

In particular, Director Comey was irate at Apple telling citizens that with its new encryption it's unable to unlock their data even if U.S. law enforcement has a warrant.  Apple's website states:

On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it's not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.

In comments to reporters on Thursday, Director Comey fired back at pro-privacy advocates, stating:

I am a huge believer in the rule of law, but I am also a believer that no one in this country is beyond the law.  What concerns me about this is companies marketing something expressly to allow people to place themselves above the law.

Of course the laws of the land in the U.S. have changed in the past two decades.  No longer does law enforcement have to get individual warrants for one suspect or small groups of suspects.  Now, thanks to the USA PATRIOT Act law enforcement can effectively seize Americans' digital property or due process, thanks to mass warrants that cover millions of Americans -- most of whom are not suspects in any criminal investigation.

Paul Revere
Today the U.S. spies not "for the people", but "on the people", with the same kinds of mass warrants that caused the colonists to rebel against the British empire. [Image Source:]

Such mass search and seizures haven't been seen America in some time.  But in effect, it's a return to America's roots as the British empire subjected America's colonies to similar handling until their pesky rebellion.

Director Comey did somewhat acknowledge this slow death of due process in America.  He commented:

I get that the post-Snowden world has started an understandable pendulum swing.  What I'm worried about is, this is an indication to us as a country and as a people that, boy, maybe that pendulum swung too far.

Of course some would say it hasn't swung far enough.  As much as the media has dwelled upon Apple's statement about warrants, few have taken note that directly below it admits to handing over 1 in 260 customers' digital data to investigators (0.00385 percent of customers).

Apple privacy statement
[Image Source: Apple]

That doesn't sound like much, but with Apple selling roughly 54 million iPhones alone in the U.S., that number indicates Apple shared information on over 2,000 Americans last year.  In other words, nearly 1 in 6 Americans bought an iPhone in 2013 and of these roughly than 1 in 26,000 had their information obtained by the government.

Given that roughly 10 million people are arrested per year in the U.S. (roughly 1 in 30 Americans) [source], without any adjustments we could estimate that at least 1.7 million iPhone owners are arrested per year.  However, given that iPhone owners tend to be more affluent and that roughly 80-90 percent of those arrested have no college education (unemployed or working poor) [source], it's reasonable to estimate that as few as 225,000 iPhone owners are arrested per year.

Of course, some people are the subject of warranted searches, but never arrested.  But that said, Apple's own numbers indicate that for every hundred iPhone owner arrested in the U.S.  (roughly) Apple releases information to federal prosecutors on one citizen.  Some of these releases may not actually correspond to arrest and may be warrantless/semi-warrantless mass searches under the PATRIOT Act.

Given those numbers, it's hard to see why the FBI is so irate at Apple.  But Director Comey was adamant stating:

I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone's closet or their smart phone.  The notion that someone would market a closet that could never be opened -- even if it involves a case involving a child kidnapper and a court order -- to me does not make any sense.

Google is marketing their Android the same way: Buy our phone and law-enforcement, even with legal process, can never get access to it.

There will come a day -- well it comes every day in this business -- when it will matter a great, great deal to the lives of people of all kinds that we be able to with judicial authorization gain access to a kidnapper's or a terrorist or a criminal's device. I just want to make sure we have a good conversation in this country before that day comes. I'd hate to have people look at me and say, 'Well how come you can't save this kid,' 'how come you can't do this thing.'

Of course Director Comey is clearly using a logical fallacy known as an "appeal to emotion" where a person looks to support a weak viewpoint by tying it to emotional hypothetical fantasies.

Again, it's pretty hard to understand why he's so outraged here. He's getting likely as many as 10,000 Apple customers' data per year in the U.S. via seizures of the iCloud, iTunes, and its devices.  Apple never promised the iCloud was protected, so the FBI already has a free pass to part of Apple customers' data, as long as they get a warrant, at least.

Android and iOS
Android and iOS both now feature file encryption.  But both rely on cloud storage, which is more vulnerable to warrants.

Further, encryption is not unbreakable.  Hackers routinely compromised encrypted password files.  A variety of brute force and algorithmic attacks exist to crack most forms of common encryption that would be used on a mobile device.

In this regard, the FBI's concern is even more outlandish, as in essence they're arguing that locks are too dangerous to be owned.  By that logic, citizens who place a lock on their front door and put personal possessions in a locked file cabinet or safe are "above the law".

Such arguments are pretty weak as they ignore the fact that -- with warrant -- FBI agents can break into lockboxes and other physically guarded areas or items.  Likewise FBI agents can, of course, break encryption.  No Android or iOS file is truly safe.

Password table
Encryption is a lot like a lock.  It can be broken, with time and effort. [Image Source: Avii/Dreamstime]

At the end of the day the Director of the nation's largest investigative organization is stooping to despicable logical fallacy and looking to throw out law abiding citizens privacy protections.  And why is he doing this?  Not because the FBI is unable to get digital data certainly.

Rather, he's making these arguments because the leadership of the FBI is enabling agents on the force who are simply too lazy to actually do real investigative work.  It appears the FBI wishes that citizens would just hand it evidence.  It seems Director Comey and his advisors need a cold dose of reality.  Sacrificing freedom for convenience is the path to tyranny.

[Correction: An early version of this article had a calculation based on a release rate of 0.385 percent, based on Apple's comments.  The text has been corrected.]

Sources: The Huffington Post, Apple

"There's no chance that the iPhone is going to get any significant market share. No chance." -- Microsoft CEO Steve Ballmer

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