According to Apple’s CEO, Tim Cook, the company attempts to avoid collecting user data when it designs new technology and services. The most recent version of Apple’s mobile device operating system, iOS 8, encrypts the data for all iOS 8 applications, such as email, call records, and iMessage, and this data is secure and inaccessible without the user’s passcode. Unlike previous versions of the operating system, it is no longer possible for Apple to bypass the user’s passcode and unlock the device for law enforcement. Only the user holds the “key” to unlock the encrypted data.
Of course, the deployment of Touch ID in more recent models of iPhones and iPads undercuts some of these new privacy protections. Touch ID relies on a fingerprint, rather than a passcode, to access an iPhone or iPad device. Law enforcement may be able to gain access to the contents of any of iPhone or iPad that utilizes Apple’s Touch ID feature. A Virginia court recently held that law enforcement can lawfully require a suspect to unlock a phone using their fingerprint without violating the privilege against self-incrimination provided by the Fifth Amendment of the U.S. Constitution.
Forensic experts have also noted that is still possible for law enforcement to access sensitive data on the device stored in third-party applications such as Facebook, Instagram and Twitter as well as the device’s web browsers, photos and video. Through a trick called “siphoning,” this third-party application data can be accessed by impersonating a trusted computer to which a user has previously connected the device. To employ this trick, law enforcement or a cyber hacker must either plant malware on a user’s computer or simply grab the user’s computer along with his or her mobile device. In addition, the user would also have to leave the device unlocked; locked and freshly restarted devices are not vulnerable to siphoning.
While iPhones and iPads are not completely immune to access by law enforcement (or hackers) – it is clear that Apple is making an effort to improve their reputation for protecting the data of their customers. It is widely believed that Apple’s new increased focus on privacy is in response to several high profile cyber hacks, including the recent embarrassing hack that stole celebrities’ nude photographs from their Apple iCloud accounts. Apple’s efforts are generally being applauded by privacy advocates and Apple users.
Of course, Apple’s new policy (and operating system technology) has drawn sharp criticism from law enforcement and the intelligence community, which has labeled it a threat to national security and an impediment to criminal justice – though in light of the growing use of Touch ID (and law enforcement’s ability to compel a use of fingerprint to unlock smartphones and tables), at least some of the concerns expressed by law enforcement seem overblown.
It will be interesting to see how other mobile device manufacturers respond to Apple’s well-publicized privacy campaign. Will they follow suit? Will Apple’s change in operating system technology have any noticeable impact on preventing cyber hacking of Apple mobile devices? Time will tell.
Mindy Vervais’ practice focuses on energy regulation and general commercial litigation. A significant portion of Mindy’s practice involves providing regulatory, business and litigation services to regulated infrastructure service industries including electric, natural gas, water and sewer utilities, hydroelectric facilities, and telecommunication companies. Mindy is regularly involved in administrative litigation at the state and federal level as well as in providing general business advice, compliance planning, and a wide variety of related legal services. She has represented clients before multiple state public service commissions as well as the Federal Energy Regulatory Commission. Mindy’s commercial litigation experience includes representing clients in state and federal courts throughout North Carolina as well as in a number of other jurisdictions in matters concerning a wide variety of issues including contract and employment disputes, trade secrets, commercial real estate, equipment leasing, and collection matters. Most recently, Mindy obtained a jury verdict in favor of a national home warranty company in a wrongful death suit.