In many cases, the American judicial system doesn’t view an encrypted phone as an insurmountable privacy protection for those accused of a crime. Instead, it’s seen as an obstruction of the evidence-gathering process, and a stubborn defendant or witness can be held in contempt of court and jailed for failing to unlock a phone to provide that evidence. With Apple and Google no longer giving law enforcement access to customers’ devices, those standoffs may now become far more common. “You can expect to see more cases where authorities are thwarted by encryption, and the result is you’ll see more requests that suspects decrypt phones themselves,” says Hanni Fakhoury, an attorney with the Electronic Frontier Foundation. “And by requests, I mean demands. As in, you do it or you’ll be held in contempt of court.”

Monday, September 22, 2014