Friday, February 19, 2016

Laziness in the Digital Age: Law Enforcement Has Forgotten How To Do Their Jobs

In all the hubbub around the FBI and Apple getting crosswise with each other, there's a really important point that's been lost, and it's not one that the popular press seems to be picking up on.

From initial appearances, the public as a whole seems to support Apple's position -- of protecting the privacy of its users -- over the FBI's. But there is still a sizeable minority who are critical of Apple as obstructing justice and aligning themselves with terrorists.

What the critics are overlooking is that the very existence of this information -- the information the FBI claims is critical to their investigation -- is a quirk of the brief era we currently live in. Go back a decade, and there would be no magical device that people carry with them and confide their deepest secrets to. Go forward a decade, and personal mobile devices are going to be locked down in ways that will be truly uncircumventable, rather than merely difficult to break.

But during the decade or so that people have been increasingly using easily exploitable digital devices and communication, law enforcement has become utterly dependent on leveraging it for investigations. They've simply forgotten how to do what they do for a living.

When James Oliver Huberty shot 21 people at a San Diego-area McDonald's in 1984, there was no phone to ask Apple to unlock. Patrick Edward Purdy in Stockton, CA in 1989? No phone. George Jo Hennard in a Texas Luby's in 1991? He wasn't carrying a digital diary with him for police to prowl through. I could go on for much longer than any of you could possibly bear to read. In none of these cases did law enforcement have a convenient electronic device they could use to delve into the perpetrator's inner thoughts. They pursued their cases the same way law enforcement has for the centuries prior: they applied the hard work of actual physical investigation. They did their job.

Law enforcement agencies developed investigatory techniques before the ubiquity of digital devices, and those techniques worked just fine. Those techniques will continue to work just fine after everything is finally locked down, and that day is coming soon. All the FBI needs now is to re-learn how to employ these techniques, rather than pushing companies to weaken privacy protections for people worldwide.

And they need to re-learn these techniques before digital snooping becomes completely worthless, or they're going to be in a world of hurt.


  1. This isn't entirely fair. Before smartphones, people would have stored and transmitted information in unencrypted media like camera film, notepaper, and POTS. Now (and in the future) people are more likely to put that information in protected devices and encrypted transmissions, so the job of law enforcement is going to get harder in that respect.

    Now, it's hard to say whether their jobs are getting harder *overall*; IoT is going to provide a pervasive, easily penetrated, and much broader mass surveillance network.

    1. I'll grant that this is true, but only to a very limited degree.

      It's easy to forget how relatively exotic it was to have more than just a few photos of anything but special occasions. Growing up, I recall that a single 24-exposure roll of film would last the family for months. Something as special as a birthday might warrant three or four photos. Barring hobbyists, the lifetime output of any one person was trending to something south of 1,000 pictures.

      On a quick check, I have over 30,000 photos on Flickr and an additional 28,000 or so on the home NAS that haven't been uploaded anywhere. And that's not including the thousands that are stored on family members' various smartphones. There's just no comparing "what was recorded on film" in the '80's and "what is recorded by digital cameras" in the '10's.

      I can make the same arguments for paper records (I promise that I'm far more likely to be able to tell you what I was doing on a specific, arbitrary date and time in 2010 than I could for 2000) and interpersonal communications (25¢/minute to call in-state was enough to dampen any desire to talk to people on the phone, and I *certainly* wouldn't be conversing with someone on the other side of the planet like I am now).

      My point is that these behaviors -- the offloading of cognitive functions to helper devices, the pervasive self-recording -- are completely novel and deeply intimate. Even if law doesn't catch up with the fact that this information is effectively as private as the thoughts in your head (and, at least in the U.S., the fifth amendment stakes those out as inviolable), the technology eventually will.