Google, Apple’s refusal to cooperate during investigations a ‘frustration’ for LE

The New Jersey Supreme Court is weighing whether LEOs can force suspects to unlock phones during an investigation

March 06, 2020 11:39 AM

Authorities investigating missing persons and other time-sensitive cases continue to by stymied and frustrated by tech giants’ refusals to cooperate with requests for suspect’s cell phone information.

Andrew Goudsward
Asbury Park Press

ASBURY PARK, N.J. — Authorities investigating the disappearance of Stephanie Parze seized two cellphones in hopes they would offer clues about what happened to her.

They couldn’t open them.

The smartphones were locked, and the information they contained was protected by sophisticated encryption software. Apple and Google have rebuffed law enforcement’s attempts to force them to unlock phones connected to criminal investigations.

Parze’s remains were found on the side of a highway in Old Bridge, New Jersey, in January. Investigators concluded Parze’s on-again, off-again boyfriend John Ozbilgen killed her and tried to hide her body.

The case highlights challenges investigators have faced in the years since Apple refused demands to create a “backdoor” to give authorities direct access to iPhones, a struggle that pitted the U.S. government against the world’s largest company and raised questions about the balance between personal privacy and collective security.

Apple, which battled the FBI over access to cellphones of suspected terrorists, said it cannot unlock iPhones for police without compromising its customers’ privacy and the security of its devices.

Monmouth County Prosecutor Christopher Gramiccioni said seeking a judge’s permission to unlock a cellphone should be no different than traditional warrants to monitor bank accounts or search a suspect’s home. In those cases, a judge allows authorities access to even the most intimate aspects of a person’s life if they can establish probable cause that a crime has been committed, he said.

“It’s reflected in our Constitution. It’s worked in our criminal justice system. And now for whatever reason, over the past few years, we just have big technology companies that are refusing to assist under those circumstances,” Gramiccioni said. “This is the only place where a technology company, a business or otherwise, is allowed to skate from helping out, and I think it’s just a shame.”

Smartphones could yield vital evidence needed to prosecute suspects, including photos, text messages, emails, location data, internet browsing history or usage patterns, Gramiccioni said.

“It’s a classic dilemma between law enforcement and privacy rights,” said Elie Honig, the executive director of the Rutgers Institute for Secure Communities. “This is a fairly new issue obviously that’s come along with the advent and proliferation of new technology, and ultimately, I think it’s an issue that the courts are going to have to weigh in on.”

Police often collect a great deal of information from an individual’s cellphone without physically unlocking it, particularly if the user backs up their phone’s data to the internet. In other cases, text messages, photos and communication on encrypted apps are accessible only directly from the phone.

The New Jersey Supreme Court is considering whether police can force suspects to give up their passcode or unlock their phone in an investigation.

Prosecutors named Ozbilgen as a “person of interest” in the Parze disappearance in mid-November as they sought to keep him in jail on the child pornography charge. By then, Gramiccioni said, authorities had collected a “great deal” of evidence indicating Ozbilgen was Parze’s killer, but they hadn’t recovered a body and were waiting on other information, including material stored on the cellphones.

Ozbilgen was never charged in connection with Parze’s disappearance. He killed himself Nov. 22, three days after being released from custody. He left two suicide notes that expressed fears of “life in prison” and referred to problems with a “girl in the news.”

Gramiccioni said his investigators have been stymied in several other cases in which they have been unable to unlock cellphones seized during investigations. Authorities seized cellphones as they investigated the murder of Jehadje McMillian, 23, and related shootings in Asbury Park and Neptune, New Jersey, last summer.

Five men were charged in connection with those crimes, but authorities are locked out of all six phones. Similar issues have emerged in other shooting investigations.

“Just the ability to get into these phones, does it play a role in ensuring safety and security in our communities? I think the answer is yes,” Gramiccioni said.

Gramiccioni said his office spends tens of thousands of dollars in each case to hire outside companies who try to hack into the phones.

Those firms have limited success depending on the make and model of the phone and the individual user’s security preferences, he said. It can take months to break in.

Ed Parze, Stephanie’s father, said the delays police face in getting potential evidence from smartphones are “ridiculous.”

“It’s way too long when you’re dealing with missing people,” he said. “They are playing with people’s lives here.”

Apple and law enforcement have been locked in a stalemate over access to iPhones since 2014 when the company strengthened its encryption technology so not even the company itself could unlock its phones.

In 2016, the FBI demanded the company create specialized software to unlock the iPhone of one of the perpetrators of a terrorist attack in San Bernardino, California, the previous December that killed 14 people.

Apple refused, arguing that the government’s request would require the company to undermine its own privacy protections and potentially allow dangerous software to fall into the hands of cybercriminals or authoritarian governments such as China.

“The U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone,” Apple CEO Tim Cook wrote in an open letter in response to the FBI. “It would be the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

The “backdoor” that law enforcement demanded is “exactly what hackers and other governments look for” when they try to break into a smartphone and steal personal information, said Megan Iorio, an appellate attorney at the Electronic Privacy Information Center, a nonprofit organization focused on privacy issues related to emerging technology.

The case was headed to court when the FBI dropped its case, revealing that an outside firm helped authorities unlock the phone.

Attorney General William Barr publicly pressed Apple to open iPhones used by a Saudi air force cadet who shot and killed three American sailors at a Florida naval air station in December.

Apple said it routinely helps the FBI with sensitive investigations, and there are ways for law enforcement to collect data from its phones without breaking into the encryption software.

Privacy advocates and some technology experts said law enforcement’s request is different from a traditional search warrant because smartphones hold vastly more and much different potential evidence than a home or a bank account.

“They are asking for new information that didn’t exist before,” Iorio said. “It exposes information that is really close to the contents of one’s mind to law enforcement with very little work from law enforcement.”

The request would, in effect, dictate to a private company how it could design and secure its products, experts said. Hannah Bloch-Wehba, an assistant law professor at Drexel University who studies privacy and cybersecurity issues, said the debate is really a struggle for control between the government and massive technology companies.

“It’s about the roles and responsibilities of these companies who wield such incredible amounts of power that they are now determining the outcomes of criminal investigations,” she said.

Cell Phone Search Investigations