THE BLOG
10/27/2014 06:41 pm ET Updated Dec 06, 2017

Apple and Google Are Right. The FBI Is Wrong. CHiPs Nude Photo Scandal Shows Why.

Artur Debat via Getty Images

About a month ago, a debate erupted when Apple and Google announced they were going to start providing encryption services for smartphones that could not be cracked by anyone -- including the police. James Comey, the head of the Federal Bureau of Investigations, was horrified at this prospect and began a public-relations push to convince the companies (and the public) that this was a terrible idea. He tried to get the companies to change their decision to (as he put it) "market something expressly to allow people to place themselves beyond the law."

This was a heavy-handed attempt to put forth a novel idea: Law enforcement is entitled to all your data, even if you try to encrypt it. Scary warnings accompanied this reasoning, about murderers and kidnappers (and worse) going free because law enforcement wouldn't be able to decrypt crucial data in time to foil the bad guys' plots. My response, at the time, can be summed up as: "Tough." Tough luck for the cops. In more detail: Nowhere in the Constitution does it say that every citizen's private papers must be readable by the government. Quite the opposite, in fact. Why would Thomas Jefferson have had (and assumably used) cipher wheels if he thought governments had a right to read everything he wrote?

Sad to say, the California Highway Patrol just made the most convincing argument to date as to why the F.B.I. is wrong and Apple and Google are right to offer strong encryption to the public. A woman who was pulled over and arrested by a California Highway Patrol officer for drunk driving happened to notice that, after she got out of custody, her smartphone had sent photos to a number she didn't recognize. She was only able to figure this out because she had a tablet synced to the phone. The record of having sent the photos had been deleted from the phone, but it appeared on her tablet.

What had apparently happened was that the CHiP officer had trolled her phone for nude or revealing photos, and then when he found some, he forwarded them to his buddies on the force. Then he tried to cover his tracks by deleting the records of the photos having been sent. Thus making the California freeway cops the new poster children for why the public needs to be able to secure their data.

There is so much wrong with this story, it's hard to even know where to begin. In the first place, there is simply no reason for the cops to even look at her phone. She was obviously drunk (very drunk -- 0.29 blood alcohol content) and she was arrested for driving in that condition. What possible "evidence" did the police think they could find on her phone when they already had an iron-clad case against her? There is simply no valid law enforcement reason for the cop to view anything on her phone. None. But that didn't stop the guy from scrolling through her photos for his own prurient purposes.

This wasn't the first time this officer had done so. In one instance, he sent private nude photos from a woman's phone while she was being X-rayed in the hospital after an accident. How do we know this? Because the officer pointed it out himself in the accompanying email message to his buddy. Multiple emails had been sent by the officer in question over the past few years, and he reportedly said that he had learned this frat-boy behavior when he was stationed down in Los Angeles (he currently serves in the San Francisco Bay Area). None of the officers he sent the photos to ever reported him, which might lead one to conclude that this is not a problem of one rogue cop, but rather an ingrained culture within the Highway Patrol. Nobody now knows how wide a problem it is and how many cops were involved, but the answer to that question seems likely to be higher than "just one officer."

So far, the local prosecutor hasn't said what is going to happen to the officer. But what really needs to happen is for California's attorney general to get out in front of this scandal, and announce a state-wide investigation of the Highway Patrol. Start someone sifting through all official email with a CHiP address, and let's see how pervasive this odious practice really was.

It's astounding that, in this day and age, anyone with an official email would use it to send pornography, but it does happen. Pennsylvania is right now in the midst of an enormous porn scandal, which has now reached up to snag a sitting state supreme court justice. Some guys never learn, it seems, no matter how powerful they get. This scandal was brought to light because an investigation which stemmed from the child abuse at Penn State also uncovered a whole lot of casual porn emails from various members of the state's law enforcement and judiciary. That's the type of investigation which should be immediately launched in California. And as a result, anyone in any sort of official capacity who is found to have invaded the public's privacy in this fashion should not only be fired but also immediately brought up on felony charges. Even in Pennsylvania, nobody has yet suggested that the porn being shared consisted of naked photos stolen from a woman's personal phone. Sharing porn is one thing (even for a judge); but trolling for amateur bedroom shots, stealing them, and then disseminating them to your buddies -- all of whom wear badges -- is quite another. The solution to this scandal is clear: an aggressive investigation, followed by prosecutions and some jail time. This is a case where "sending a message" to all California police officers is absolutely necessary. The message is: "This Is Unacceptable Behavior, Guys."

The technology may be fairly new, but this isn't a new problem for people in positions of authority. It's part of the universal human condition, in fact. You can find lots of quotes from famous authors pointing the basic problem out. "Power tends to corrupt, and absolute power corrupts absolutely" is one good example. My favorite comes from ancient Rome, from the poet Juvenal (who also famously remarked that the common people were happy enough with "bread and circuses" rather than caring about such things as freedom). Juvenal's original: "Quis custodiet ipsos custodes?" This is variously translated as: "Who will guard the guardians?" or (for fans of the comic book and movie): "Who will watch the watchmen?" He wrote that nineteen centuries ago. An idea for James Comey to reflect upon, perhaps.

Apple and Google are offering a service in the marketplace. That service is privacy. The market for such a service now exists not only because celebrities' own nude photos were hacked by lawbreakers. The market also exists because citizens have every right to privacy even from the police. The CHiP scandal is merely the most recent example of why people might want phones with truly private data. Does this mean some criminals will be able to hide from the cops? Yes. Yes, it will. But it will also mean that cops can't just root around in your data and trample any citizen's rights for no reason -- which is precisely what the Constitution intended. It will stop any "fishing" in your phone's data entirely, no matter how noble (or how ignoble) the reason may be for doing so.

To quote our founding document, a woman driving on California highways should be "secure in [her] papers and effects, against unreasonable searches and seizures." This right "shall not be violated." This includes a police officer scrolling through personal data for absolutely no other reason than sheer curiosity or juvenile lust. "Maybe she's a drug dealer" might flit through the brain of one officer, while: "Wow, she's hot, wonder if she's got any bikini shots or naked photos I can send to my buddies?" might be the motivation for another. Either way, they have no right to conduct such a fishing expedition. By doing so, the officer actually torpedoed his own case against the woman. All charges were dropped -- despite the fact her blood measured 0.29, which is over three-and-a-half times the legal limit -- because the prosecutor knew he'd be laughed out of court by any competent defense lawyer. That doesn't help law enforcement. Now, not only will she get away with her crime, she is suing and will likely win a big settlement (of taxpayer money).

The California Highway Patrol has a long way to go to regain any sort of confidence from the public, but locking your data up before a cop ever picks up your phone is a much simpler solution than trusting in the goodness of all police everywhere. And remember one final thought -- if a cop has your phone for any reason at all, you absolutely do not have to provide them your password (even if they ask nicely). As a general rule, never offer your password to the cops until your own lawyer tells you it is OK for you to do so -- and not before. If you leave your data locked up, then scandals like this one simply would not be possible. And that's a fine way to guard the guardians, whether James Comey agrees or not.

 

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