By Sara Kropf

The Department of Justice has embrace electronic surveillance in white-collar criminal cases. Search warrants to ISPs or phone companies for emails and text messages, or forensic analyses of a client’s electronic devices are the norm. I tell clients that by the time we learn about a criminal investigation, DOJ has already issued a search warrant or subpoena to Google for their Gmail account.

One aspect of the the September 2020 update to the iPhone’s operating system worries me. It may give DOJ yet another arrow in its electronic-surveillance quiver, particularly in international criminal investigations.

The Update

On September 16, 2020, Apple released iOS 14 for iPhones. (My kids have corrected me that it is pronounced Eye-Oh-Ess and not “Eye-ose,” which is what I have been saying for the last however-many years. I stand corrected.)

Part of iOS 14 is an app for translating voice calls and text messages called “Translate.” (Creative, eh?) 

From the Apple website:

Translate is designed to be the best and easiest app for translating conversations, offering quick and natural translation of voice and text among 11 different languages. On-device mode allows users to experience the features of the app offline for private voice and text translation.

This is a very powerful tool, and a major step towards breaking down language barriers. Now, it’s not the first app to offer this functionality, but given the prevalence of iPhones, it will have a bigger impact than existing apps.

An Example

Let’s say a client is a U.S.-based employee of a Swiss company. He’s an unknowing target of a criminal investigation into foreign bribery by the company. To communicate with his Swiss supervisor in French, though, the client uses Translate. They communicate using innocuous terms about a foreign deal, perhaps discussing “consulting fees” (les frais de consultation).

DOJ doesn’t have enough evidence to obtain a Title III wiretap for his cell phone. What happens next? Well, maybe DOJ will demand that Apple produce the Translate data for the client’s phone.

Where Will Translate Data Go?

Normally, when you have a telephone conversation, there’s no real-time transcript. If you use Translate, Apple may have one based on the translation of the conversation. And that means DOJ could try to obtain that transcript.

Apple says in its privacy policy:

While you use the Translate app, your voice interactions and input texts are sent to Apple to process your requests. Your requests are associated with a random, rotating identifier, not your Apple ID, email address, or other data Apple may have from your use of other Apple services.

This all sounds good. If Apple cannot search by user, then DOJ arguably cannot subpoena my client’s Translate records.

But, not so fast …

By default, Apple stores transcripts of your voice interactions and your input text for two years and may review a subset of of those transcripts. The small subset of transcripts that have been reviewed may be kept beyond two years, for ongoing improvement of Translate and other natural language processing features such as Siri.

Apple also invites users to “improve Translate’s voice translation by allowing Apple to store and review your audio interactions, by opting in to Improve Siri and Dictation.”

This part of the privacy policy is a bit of a record scratch moment. Could DOJ demand that Apple search Translate records for a specific name or phrase in a time frame? Or within a certain geographic region? There’s no question that Apple will have the data for at least two years and that leaves open the possibility that it can be searched and turned over to DOJ.

In my example, DOJ couldn’t get a wiretap, but it now may still try to subpoena Apple to produce records from a specified search. This could result in providing a rough transcript of the conversation between my client and his French boss. And that rough transcript could be enough to seek an indictment.

Lost in Translation

Anyone who has used a translation app knows that it is far from perfect. A lot of meaning is literally “lost in translation.” That creates a second concern: What if Translate mis-translates something and DOJ uses that incorrect translation to prosecute someone?

For example, maybe my client was talking to his boss about the need to pay a foreign official “concession fees” to use a government-operated sports arena. But the microphone picked up “consulting fees,” and now DOJ thinks my client is suggesting that the company bribe a foreign official. Assuming the audio is not stored by Apple (and that seems doubtful), it could be impossible to convince a jury that my client said “concession fees” on a phone call three years ago, and not “consulting fees.”

There are cases that turn on the interpretation of a single phrase in a phone call. Using AI-based translation data creates a serious problem since that translation may not capture the nuance of phases or the microphone may misunderstand a word or phrase.

Wouldn’t It Be a Fifth Amendment Violation Against Self-Incrimination to Use the Translate Data?

Good idea, but no. The Supreme Court held a long, long time ago that the Fifth Amendment does not prevent introduction of a wiretapped private conversation into evidence. Olmstead v. United States, 277 U.S. 438 (1928).

Maybe I’m worried about nothing. Maybe it’s too far-fetched to think Apple can search all of this data to respond to a subpoena .

Apple may also refuse to respond to a subpoena, saying that it is too burdensome to do so. It has stood up to DOJ before.

But maybe not. Someone needs to ask Apple whether it will respond to DOJ subpoenas for Translate data or whether it will be impossible to do so.

(A friendly reminder that apps like Signal and Telegram are encrypted.)