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sophisticated encryption programs

Encryption

Manufacturers of mobile devices employ sophisticated encryption programs and other software to prevent (or at least deter) unauthorized access to digital files on those devices. These programs erect potentially insurmountable barriers to forensic examination. Apple fortified the protections for its devices in 2014 by changing its design to prevent anyone from tapping into its device’s hardware—and thereby accessing protected data—without having a working passcode. Starting with the iPhone 5 model, Apple began using a program designed to automatically erase certain data after ten unsuccessful passcode attempts. Apple has resisted requests from law enforcement to turnover its “key” to allow access to its devices without a working passcode. Whether Apple can be forced by court order to unlock one of its devices was partially litigated in a criminal investigation involving the San Bernardino terrorists. The FBI obtained an order from the federal district court in Riverside, California, directing Apple to help the FBI defeat the passcode requirement. When Apple fought back in court (and in the court of public opinion), the FBI said, in effect, “never mind” and canceled the hearing, after apparently identifying another way to defeat the passcode protection without triggering the auto-erase feature.The move by mobile device manufacturers to develop more sophisticated software to protect data means fewer mobile devices will be readily subject to forensic examination, even as forensic examiners develop countermeasures to try to overcome these protections.3 The “arms race” appears to squarely favor manufacturers at this point. Even with respect to criminal prosecutions involving terrorists, Congress does not appear ready to legislate a solution by giving law enforcement a permanent “back door” to such devices.