In a House Appropriations subcommittee hearing this morning on the FBI budget for the upcoming fiscal year, FBI Director James Comey was again critical of new encryption features from Apple and Google that he claims would make it impossible for law enforcement to access the contents of mobile device communications.
This is not the first time the U.S. law enforcement and intelligence-gathering community has aired this complaint. Last month, NSA director Mike Rogers hit similar talking points at a New America Foundation event in D.C., calling on Congress to draft legislation providing a legal framework accessing encrypted communications. Comey claimed encryption was leading us to “a very, very dark place” in October of last year. The concerns follow announcements from Apple and Google that they deployed encryption for which not even they had the keys back in October.
Today though, Congress got involved.
“The new iPhone 6’s have an encryption in it that you can’t get in to and there is no backdoor key,” said Rep. Robert Aderholt (R-AL) as he reached into his pocket and pulled out his iPhone. “This is different from their predecessors. Their other phones you were able to get into. What is the FBI’s position on Google and Apple’s decision to encrypt these smart phones?”
Comey replied that this reality was a huge problem for law enforcement because these new encryption implementations would make it impossible for law enforcement to execute court ordered warrants where phones were locked and communications data encrypted.
“We’re drifting toward a place where a whole lot of people are going to be looking at us with tears in their eyes,” Comey argued, “and say ‘What do you mean you can’t? My daughter is missing. You have her phone. What do you mean you can’t tell me who she was texting with before she disappeared?”
Comey went on to assure the attending members of Congress that he wasn’t seeking backdoors. He said he wants a way to access the content and communications data belonging to the subjects of criminal investigations after obtaining a warrant. Comey claims that local law enforcement officials around the country are very concerned, because, they claim, mobile communications content play an integral various investigations.
While Comey was unable to quantify the effect of encryption technologies on FBI investigatory work, he did claim that it has become an obstacle in a massive amount of cases, saying it would only become more of a problem moving forward.
“I’ve heard tech executives say privacy should be the paramount virtue,” Comey said. “When I hear that, I close my eyes and say, ‘Try to imagine what that world looks like where pedophiles can’t be seen, kidnappers can’t be seen, drug dealers can’t be seen.'”
Rep. Aderholt then asked Comey what he needs from Congress in order to address the problem. Comey acknowledged that the issue is a complex one, but ultimately that the only reasonable fix would be a legislative one and not a financial one.
“If you want to do business in this country,” Comey warned, “then you’re not going to be allowed to create spaces that are beyond the reach of the law.”
Rep. John Carter (R-TX) wondered how companies are able to encrypt phones in such a way that their contents cannot be accessed while also getting compromised by attacks.
“Cyber is just pounding me from every direction, and every time I hear something or something pops into my head, because I don’t know anything about this stuff, [but] if they can do that to a cell phone then why can’t they do that to a computer so no one can get into it,” Carter reasoned. “If that’s the case, then isn’t that a solution to the invaders from around the world trying to get in here?”
Somehow Carter reigned in his stream of thought and brought it back to the point at hand, suggesting to his colleagues that encrypted smartphones were the perfect tool for lawlessness and in fact a violation of the Fourth Amendment, which allows for lawful search and seizure under warrant.
In an attempt to make sense of the issue, the Representatives explained to one another that no safe in the world is unbreakable, so how is it legal that there could be encryption that is not accessible.
They seemed to agree that the analogy was a valid one, though it some would argue that a safe and a cell phone are in reality nothing alike.
On that note, Rep. Michael Honda (D-CA) suggested that potential legislation seeking access to phone data may be more akin to laws governing access to the content of a suspect’s own mind than to laws dealing with physical access. He contended that some sort of force of law compelling suspects to testify or disclose the information to access their phone under threat of contempt could be another way to work around encryption.