October 25, 2014 – Volume 2
In September 2014, Apple issued an update to its operating system for iPhones and iPads, known as iOS 8. In the coming weeks, Google is also expected to unveil an updated operating system - known as Android “L” - for most Android cellphones and tablets. Both new software packages will significantly curtail law enforcement’s ability to look for data on smartphones and tablet devices, even with properly obtained search warrants or other judicial process. The following are some points for law enforcement to consider:
- Android Phones May Not Have the New OS: Though Apple already has sent iOS 8 to most iPhone and iPad users, the new Android operating system is not yet released. Check to see if a seized Android phone is still using an older operating system that will allow a direct search of the device.
- Search the Cloud: Search the Cloud: Both Apple and Google allow and encourage users to back up the content of their devices within the companies’ data “clouds”. Law enforcement may still be able to retrieve valuable evidence from a suspect’s device through the “cloud,” though the “cloud” may soon be encrypted as well. Search warrants will have to include language supporting a search of the “cloud.”
- How Do You Communicate? When interviewing a suspect or a witness, ask them how they communicate with others, e.g. Facebook, WhatsApp?, etc. This provides a lead for where to look for other possible evidence.
- Get Consent to Search: These new operating systems underscore the importance of obtaining consent from a suspect to search his or her electronic device. When a suspect consents to a search of a phone or tablet, an officer should obtain the device’s password from the suspect and confirm that the password works. With consent, the device can be opened and searched directly, rendering issues related to operating systems and encryption moot.
For more details see these articles:
- Detailed Memo on the New Apple and Google Operating System, October 17, 2014, Antonia Merzon. Click here
- “New Apple and Android Operating Systems Can Block Law Enforcement Search Warrants”, The Washington Post, September 26, 2014, DA Cyrus Vance. Click here
- “FBI Blasts Apple, Google for Locking Police Out of Phones,” The Washington Post, September 25, 2014. Click here
- Apple’s Statement Re Government Information Requests. Click here
- “Apple Will No Longer Unlock Most iPhones, iPads for Police, Even With Search Warrants,” The Washington Post (9/17/2014). Click here
- “Apple iOS 8 Keeps Data Private, Even From the Police,” The New York Times (9/17/2014). Click here
- “Police Can Still Get Data Off Your iOS 8 Device Without Apple’s Help,” Gizmodo (9/19/2014). Click here
- “Seizing Electronic Evidence from Cloud Computing Environments,” by Josiah Dykstra ‐ University of Maryland, Baltimore County. Click here