from the the-legislative-$5-wrench dept
Legislators and law enforcement (for the most part…) have been hesitant to demand companies build backdoors into their encryption schemes. The unwillingness to cross this government overreach line hasn’t really tempered cursing of the impending darkness, however. That remains, largely propelled by a few of law enforcement’s loudest mouths, who haven’t seen a problem nerds can’t solve, even after the nerds have told them repeatedly the problem (safely backdoored encryption) is unsolvable.
A lobbying group for Canadian law enforcement thinks it has the answer. Why mandate encryption backdoors when you can just utilize the “backdoor” built into every electronic device?
Canada’s police chiefs want a new law that would force people to hand over their electronic passwords with a judge’s consent.
The Canadian Association of Chiefs of Police has passed a resolution calling for the legal measure to unlock digital evidence, saying criminals increasingly use encryption to hide illicit activities.
The legislated human backdoor. Obviously, such a demand raises constitutional questions, even on that side of the border.
The chiefs’ proposed password scheme is “wildly disproportionate,” because in the case of a laptop computer it would mean handing over the “key to your whole personal life,” said David Christopher, a spokesman for OpenMedia, a group that works to keep the Internet surveillance-free.
“On the face of it, this seems like it’s clearly unconstitutional.”
On this side of the border, such a mandate would also seem clearly unconstitutional, even though some courts have ruled that providing a passcode to unlock a device isn’t testimonial — even if what’s on the unlocked device may prove to be incriminating.
The head of Royal Canadian Mounted Police echoes FBI Director James Comey’s lament about (potential) evidence remaining out of reach of investigators. In fact, he pretty much quotes him directly.
There is nothing currently in Canadian law that would compel someone to provide a password to police during an investigation, RCMP Assistant Commissioner Joe Oliver told a news conference Tuesday.
Oliver said criminals — from child abusers to mobsters — are operating online in almost complete anonymity with the help of tools that mask identities and messages, a phenomenon police call “going dark.”
Mandating the divulging of passwords relies on some very dubious assumptions. One, it assumes that any information still unseen by prosecutors or investigators is of evidentiary value — hence the perceived need to force suspects to unlock devices. As was seen in the San Bernardino case, a lengthy court battle and a million-dollar payout to Israeli hackers recovered nothing of interest from the shooter’s iPhone.
Second, it assumes law enforcement will use this power wisely and with restraint — something that has historically been a problem for it. When an agency uses repurposed military technology (Stingrays) to (almost) hunt down fast food thieves, it’s safe to assume forcing someone to expose their “whole personal life” by turning over a password is likely to result in the same sort of misuse… and abuse. It won’t be reserved for the “worst of the worst” criminal suspects and will likely be legislated into existence without enough statutory restrictions to prevent device seizures incident to even the most innocuous of arrests to be viewed as evidentiary fishing expeditions.
The only standing between this law (if it becomes law) will be Canada’s judges. While some judges may be unwilling to expose a person’s entire life just because law enforcement swears it’s necessary, others will be more amenable. Bring on the forum shopping!