Reports of the use of encrypted communications by terrorists involved in the recent Paris attacks once again demonstrates the importance of advanced code breaking capability and critical intelligence gained therefrom.1 None other than Gen. George Washington emphasized the importance of intelligence when he stated: “There is nothing more necessary than good intelligence to frustrate a designing enemy, and nothing that requires greater pains to obtain.”2 The Allies’s victory in World War II was aided in good measure by their superiority in code breaking. British cryptologists led by British mathematician Alan Turing, “hacked” the main Nazi coded communications device, “Enigma,” and decrypted a vast number of military messages enciphered by it over the course of the war.3
Some of today’s so-called “smartphones” use encryption and come with an impressive package of communications applications and platforms at the user’s fingertips including voice, text messaging, email and Internet access including social media, to name a few. Far more mobile than the 1940 era Enigma device, these devices may arguably be more difficult to decrypt given the 21st Century technology that created them. The question of who may be legally responsible for decrypting these devices when they are the subject of a criminal investigation, and what legal tools are available to the government to facilitate this endeavor are current issues in both federal and state courts nationwide, and addressed in this article.
