Kristen M. Jacobsen
85 Geo. Wash. L. Rev. 566
The encrypted smartphone presents a novel legal issue that is hard to
crack. Smartphone data is essential to investigating and prosecuting a range of
crimes, such as murder, human trafficking, child pornography, and terrorism.
However, Apple and Google’s recently reengineered mobile operating systems
threaten to lock out law enforcement completely. These operating systems use
full-disk encryption technology, which converts everything on a hard drive
into an unreadable format until the passcode is entered. Additionally, other
security features on the smartphone could result in the data being completely
destroyed if the passcode is incorrectly entered a certain number of times.
Locked smartphones are thus quickly becoming expensive paperweights filing
the evidence rooms of state and federal law enforcement.
This Note provides relevant background information on Apple and
Google’s use of full-disk encryption technology on their respective mobile operating
systems. Based on the necessity of smartphone data in the twenty-first
century, this Note explains that the inaccessibility of such crucial data will
likely frustrate investigations and prosecutions because law enforcement cannot
access it elsewhere. This Note concludes that to prevent “Going Dark,” Congress must
immediately enact an amendment to the Communications Assistance
for Law Enforcement Act that subjects the manufacturer and mobile
operating system provider to a civil penalty for each instance that law enforcement
cannot decrypt a smartphone it has the legal authority to search.
