The FBI director James Comey has expressed concern that Apple and Google are making phones that cannot be searched by the government.
Speaking to reporters in a briefing Thursday, Mr. Comey said he is worried that such phones could place users "beyond the law," The Wall Street Journal reported. He added that he's been in talks with the companies "to understand what they're thinking and why they think it makes sense."
Major tech companies recognize the marketing potential of selling products that make consumers feel their data is as secure as can be. Both Apple and Google have made recent announcements emphasizing their new products will make it more difficult for law enforcement to extract customers' valued data.
But Comey's remarks raise questions of what, exactly, the government wants.
The Supreme Court ruled unanimously in June that police need warrants to search the cellphones of people they arrest. Law enforcement also cannot maintain someone's personal information for its own convenience. The only exception would be in the case of urgent, or "exigent" circumstances, says Elizabeth Goitein, co-director of New York University's Brennan Center for Justice's Liberty and National Security Program.
But even then, law enforcement cannot require individuals to keep their information readily available just in case those circumstances occur. "It's like saying you have to leave your door open in case we have an exigent circumstance and we need to search your house without a warrant," she says.
This comes at a time of high concern among consumers that devices are not secure. The Edward Snowden leaks pointed to the breadth of government surveillance, and tech companies have tried to reassure customers that their information is not being handed over to the government casually.
More recently, a string of high-profile iCloud hacks saw the nude photos of more than 100 celebrities leaked onto the web. Since then, Apple rolled out its new iPhone 6 and 6 Plus and Apple Watch, restating its pledge to keep consumers' data secure. For example, a feature in its new iOS 8 mobile-operating system encrypts phone data if the user sets a passcode, making the phone unreadable to anyone except the user. Similarly, Google said the next version of its Android mobile-operating system would prevent law enforcement from accessing customers' private data.
Some critics in law enforcement argue that private companies shouldn't decide what layers of privacy individuals should receive.
"All of a sudden, a for-profit company has decided, 'We're going to step in and be the first line of defense for customers against their own government,' " Brian Pascal, a fellow at Stanford University who has worked on privacy issues, told The Wall Street Journal.
In a recent letter, Apple chief executive Tim Cook wrote that security and privacy are "fundamental" to Apple's devices. He said the company has "never worked" with government agencies to let them access company products, services, or servers.
Still, even with added device protection, Apple will hand over a user's iCloud or iTunes information if required by a court order. And authorities can obtain users' text messages and call history from wireless carriers like Verizon and AT&T through government requests and search warrants.