iPhone owners beware: The government is coming for your text messages.
The Justice Department wants real-time access to text messages exchanged between criminal suspects using iMessage, Apple’s encrypted texting app, the New York Times reported.
But Apple didn’t comply with the agency’s court order stating the company didn’t have access to consumers’ messages because they are encrypted — reopening a political standoff between tech companies and government agencies over privacy rights and national security concerns.
The U.S. government has pushed for more direct access to mobile data in the wake of the privacy revolution sparked by Edward Snowden’s National Security Agency document leaks in 2013.
Former Attorney General Eric Holder previously condemned Apple for promoting phone data encryption, calling the technology a way for people to operate “above the law,” a sentiment well-supported by politicians in the UK and Australia.
Tech companies have ducked many of the Justice Department’s attempts to trawl through or access consumer data, but the government continues to argue for such access as a means to save lives and improve law enforcement. The White House and Congress are working on legislative solutions that would enhance information-sharing between tech companies and government agencies, but are only adding to existing tensions.
Microsoft, for example, is still fighting with the DOJ over email server access. A federal judge ordered Microsoft to comply with a federal warrant in 2014 and grant the agency access to emails stored in Dublin, Ireland. Backed by Silicon Valley’s heavyweights including Apple, Microsoft is appealing the decision in a case, which could have ramifications that allow international governments similar access to U.S. consumer data regardless of where it is stored.
The U.S. Court of Appeals for the Second Circuit in New York will hear arguments on the case Wednesday.
Privacy groups and some media organizations have sided with Microsoft, calling the government’s request an intrusion that could not only strip citizens of existing privacy protections but promote censorship.
But privacy and speech concerns aside, George Washington University cyberlaw professor Orin Kerr argued that whether Microsoft wins its appeal might be a moot point.
“The Second Circuit decision may just be a pit stop on the way to Congress. And the legislative fix might look the same regardless of who wins,” he wrote. The result, he said, would more likely be added momentum for Congress to pen law that requires U.S. companies to comply with domestic warrants for American residents when their data is stored overseas.
Microsoft hinted at that idea in a blog post earlier this year, saying the Electronic Communications Privacy Act of 1986, which a federal judge said didn’t prohibit the government from seizing electronic data overseas, is long overdue for reform:
The law should, at a minimum, ensure that data stored in the cloud receives the same legal protections as data stored in our homes or in our offices. The fact that we use new technological means to communicate or store that information should not diminish the legal protections afforded to it.
But even if Microsoft loses on appeal, the company could win on Capitol Hill, Kerr argues.
“If DOJ wins in the Second Circuit, you’ll have some major tech companies urgently pushing for legislation to fix the law,” he wrote. “Similarly, if Microsoft wins in the Second Circuit, you’ll have federal law enforcement urgently pushing for legislation to fix the law. I doubt federal law enforcement has quite as much political influence these days as the major tech companies have.”