Is digital privacy a human right or the ultimate crime haven?

Which item would you rather have stolen: your phone or your wallet?

Ask anyone, and you’ll probably get the same answer: the smartphone is the most valuable property.

{mosads}It’s not surprising. In the digital era, the contents of a stolen wallet can be replaced in a matter of hours. Worst case scenario, you might lose the cash. But if the contents of your phone end up in the wrong hands, the results can be devastating.

Our mobile phones have become the living record of our lives: emails, photos, messages, plus all the data stored in the various mobile settings and the apps that we choose to download: bank and payment details, medical information, our very own movements tracked on GPS; even our shopping preferences are meticulously stored. Simply put: give me your phone, and I will know who you are – beyond appearances, beyond who you claim to be. Give me your phone and I will see the real you.

As with most forms of new technology, you can claim that sophisticated digital databases create both a risk and an opportunity. And that explains why there are currently two types of people constantly seeking access to digital banks; the criminals, and law enforcement agencies.

While no one argues that criminals should get hold of anyone’s data, the question of whether law enforcement should have access to data belonging to individuals accused of committing serious crime is a different one, and one that is raising much debate.

Some, like Ken Roth, the Executive Director of Human Rights Watch, argue that digital privacy has become the ultimate human right frontier: no one, apart from the individual in question, should have access to it. Others, like Manhattan DA Cyrus Vance Jr, believe there is instead a moral imperative to override such privacy if access to personal data could help save others’ lives.

Anyone who has been hacked or – even worse – blackmailed because intimate data was stolen, will tell you that such an intrusion can feel just as violating as having someone break into your home. They would be keen to protect digital privacy at all costs. But what would they say if evidence of those very hackings was stored inside someone’s phone, protected by the same right?

In December 2015, two terrorists killed 14 people in San Bernardino, California. For weeks after the killings, the FBI tried to access the data of the iPhone of one of the attackers but was unable to get past the encryption. Apple did not provide a so-called ‘backdoor’ to allow the authorities to conduct the search.

This past March, Apple unveiled its latest operating system that makes encryption an even bigger feature of its devices: the upgrade gives consumers a higher level of protection from mobile threats, like identity theft and hacking.

Apple is not a stand-alone case. Tech giants such as Google, Amazon and Facebook take protecting our private information very seriously. They argue the government has no right to access our encrypted data, and that even if tech companies created a ‘backdoor’ to assist police and prosecutors, this could pave the way for criminals and foreign governments to hack into the system.

Ensuring data on digital devices remains impenetrable works well among consumers, but it can also present great risks. How can prosecutors go after criminals who leave digital evidence of their crimes across secured phones and cloud devices, if data is backed by the strongest encryption systems?

This debate is even more daunting when taking into account serious crimes such as human trafficking. It is estimated that there are currently some 46 million people living in conditions of modern-day slavery across the world. That is more than any time in history.

Every day, people are literally sold into forced labor or prostitution. This is a fast-growing crime, one worth an estimated 150 billion dollars a year. That’s more than Apple’s quarterly profit, and the second most lucrative crime after drugs dealing.

When it comes to trafficking, the equation is in fact-low, risk-high returns.  According to Department of State, there were just 857 prosecutions in the entire world for labour trafficking and servitude in 2015, the most recent year data is available. Of those 857, there were 456 convictions. That’s a very small number. This is because, in many cases, investigators lack hard evidence to ensure a conviction. Often that evidence is locked away in a mobile phone.

Take the example of a 12-year-old girl who came to the attention of Safe Horizon, an NGO supporting human trafficking survivors. She had been a victim of rape and exploitation. It is believed that her attacker had strong evidence of all the crimes stored on his mobile phone. In 2014, police obtained a warrant to search his devices. But because of its passwords and encryption, they were never able to gather the evidence they needed. The case stalled.

Is this one of those cases when justice should trump any privacy concerns? Here is the paradox: the United States Constitution clearly allows law enforcement to obtain access to ‘places’ where criminals might hide evidence, so long as they possess a search warrant issued by a judge. But smartphones that are protected by encryption are currently beyond the reach of the so-called Fourth Amendment warrants. And so it happens that police can search a criminal’s house and bank accounts, but not his or her mobile phone.

You can argue that law enforcement is trying to make encryption the enemy, while there are many other tools they could access to build cases against the most serious offenders, like human traffickers. In other words: they should step up their game and change strategy. But then you can also argue that, at a time when international crime takes advantage of technology, those very same companies building the tools in question should find a way to ensure they do no harm.

This debate is a compelling one. I have still not made up my mind. But as I continue to consider all sides of the story, I fear the clock is ticking fast. Although increasingly, traffickers are being brought out of the shadows, criminals do not face any lasting consequences for their actions.

Meanwhile corporations and government have almost complete access to our lives, making it even more important to protect invasion into privacy.