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Why Sacramento Wants To Ban Smartphone Encryption

Did you know that over 20 million people a year are victims of human trafficking? That’s according to the National Human Trafficking Resource Center.

What if banning smartphone encryption could stem the rising tide of human trafficking, a form of modern-day slavery from which perpetrators force victims to engage in commercial labor services or sex acts against their will?

Sacramento County Assembly member Jim Cooper just introduced a bill, AB 1681, that sets the stage for law enforcement to investigate and prosecute suspected criminals and organizations committing serious crimes like human trafficking. And, it involves banning smartphone encryption.

Thwarting Criminal Investigation

Smartphone manufacturers in 2014 started rolling out new operating systems for mobile devices. The new operating systems use what’s called full-disk encryption (FDE) by default. According to security software firm Symantec, FDE (also called whole disk encryption) “protects a disc in the event of theft or accidental loss” and “encrypts the entire disc including swap files, system files, and hibernation files.” That means if anyone finds it, the contact remains unreadable.

Unfortunately, human traffickers are using encrypted cell phones “to run and conceal their criminal activities,” said Cooper. “Full-disk encrypted operating systems provide criminals an invaluable tool to prey on women, children, and threaten our freedoms while making the legal process of judicial court orders, useless.”

Indeed, there are only two ways to access data stored on a smartphone with FDE installed on the operating system. The user can access it using a passcode or the user can give the passcode to someone else. In other words, without a passcode, the content remains locked — even to law enforcement that establishes a probable cause, obtains a search warrant from a judge, and takes possession of the phone.

Analyst: This Won’t Work

Cooper is convinced that AB 1681 will help law enforcement agencies prevent losing critical evidence in human trafficking cases. AB 1681 effectively forces the passcode holder to share the information so law enforcement can examine the phone.

But Rob Enderle, principal analyst at the Enderle Group, told us he doesn’t think the bill will help fight human trafficking even if it makes its way to law. “The problem with this is it both violates due process and it will eliminate the security of encrypted phones by creating a master key,” Enderle told us. “Criminals will switch to third party encryption apps and the average citizen will be exposed to criminals.”

Still, Cooper is pressing forward. He wants to see civil penalties imposed against any seller, manufacturer, or leaser of smartphones using operating systems that block compliance with judge-issued search warrants via the default setting. Cooper said the bill would also put back in place an investigative tool without compromising the Fourth Amendment.

“I support an anti-encryption policy that will restore the ability to access cellphone data by a court ordered search warrant,” said Sacramento County District Attorney Anne Marie Schubert. “If smartphones are beyond the reach of law enforcement, crimes will go unsolved, criminals will not be held accountable, victims will not receive justice and our ability to protect our children and community will be significantly compromised.”

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