Is it illegal to encrypt the data on your phone? Most would say the answer is a clear no, but Apple's recent announcement that the company won't be able to decrypt user data in iOS 8 apparently has a lot of law enforcement figures spooked. Today at FBI headquarters, director James Comey told reporters he was concerned by the move. "I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone's closet or their smart phone," Comey said. "The notion that someone would market a closet that could never be opened — even if it involves a case involving a child kidnapper and a court order — to me does not make any sense."
It's hard to build a backdoor that can only used by the good guys
If this fight sounds familiar, it's because much of the 90s was spent on exactly this legal question, a fight that's now known as the Crypto Wars. PGP founder Phil Zimmermann almost went to jail over it. Of course, because it was the 90s, the fight was over desktop hard drives rather than phones, but when the dust settled, the courts ruled it was completely legal and large, reputable companies like Microsoft and Apple started offering full-disk encryption services without anyone making a fuss about it. Julian Sanchez has a great rundown of how it happened and why it was a good decision, but the general punchline is that it's hard to build a backdoor that can only be used by the good guys.
It should also be pointed out that Comey's refreshing enthusiasm for warrants is not shared across all federal agencies. Surveillance of this type frequently happens under a much lower legal standard, whether it's a subpoena, a National Security Letter or plain old FISC-approved bulk collection. In fact, programs like that are the biggest reason Apple implemented this encryption in the first place, trying to placate concerns over unauthorized government data collection. Unfortunately for Comey, just invoking kidnapped children isn't enough to undo 20 years of legal precedent.