- The Washington Times - Thursday, October 16, 2014

Technological data are becoming so encrypted that law enforcement agents are now having difficulty legally obtaining the information they need to catch criminals, the head of the FBI warned Thursday.

“Some believe that law enforcement, especially the FBI, has the ability to access phenomenal information at any time. That is the product of too much television,” said FBI Director James Comey.

“Even with lawful authority, the ‘going dark’ problem is we may not be able to access the information and the data that we need,” he said.

Mr. Comey said he is increasingly worried that encryption technology prominently featured in the latest generations of smart phones will leave the user’s information inaccessible to outside parties — even law enforcement personnel with a legitimate search warrant.

“Technology has become the tool of choice for some very dangerous people,” Mr. Comey told a gathering at the Brookings Institution, a left-leaning think tank. “Unfortunately, the law has not kept pace.”

It was one of Mr. Comey’s first major public addresses since taking over the Bureau a year ago.


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Data pulled under warrant from phones, computers and communications have been critical in solving a number of crimes, stopping child exploitation and exonerating innocent people accused of crimes, the director said.

Mr. Comey pointed to a number of investigations where information on phones has led to arrests, including text messages between parents who killed their infant daughter in Los Angeles; GPS tracking that placed a reckless driver at the scene of a Sacramento fatal accident; and text messages that allowed federal drug enforcement officers to track the distribution of heroin in Kansas City.

But some types of encryption on Android phones — and now being featured prominently on Apple’s iPhone 6 — would allow users to essentially lock their phones so they would be completely inaccessible to outside parties, including the phone companies and law enforcement agencies.

“It’s equivalent to a closet that can never be opened, a safe deposit box that can never be opened, a safe that can never be cracked,” Mr. Comey said.

He said he wants the U.S. to have a national dialogue about finding a balance between privacy and access that would allow law enforcement to do its job. The encryption efforts come in the wake of the revelations of extensive surveillance and high-tech eavesdropping by the National Security Agency.

“Have we become so mistrustful of government — and law enforcement in particular — that we’re willing to let bad guys walk away and leave victims in search of judgment?” Mr. Comey said.

But Nuala O’Connor, president of the Center for Democracy and Technology, a nonprofit advocating for Internet privacy, said that law enforcement already has many legal ways to obtain the data they need in criminal probes.

“Weakening the security of smartphones and trusted communications infrastructure should not be one of them,” Ms. O’Connor said.

Alan Butler, senior counsel at the Electronic Privacy Information Center, said he believes the issue is being blown out of proportion. The encryption software being currently debated has existed for many years, but has been in the news recently because of Apple’s plans to improve cybersecurity for the iPhone 6.

“There’s nothing new under the sun,” Mr. Butler said. “Someone who has wanted to use encryption can and has used encryption for years.”

Mr. Comey said he wants to work with phone companies and other communication businesses to have plans in place so law enforcement can access data and devises when they need to with a court order.

“We are not seeking a backdoor approach; we want to use the front door with clarity and transparency,” he said.

Mr. Butler, however, argued that any access the FBI has could easily be exploited by others.

“We can’t create a magical encryption system that has a back door that opens for the good guys and not for the bad guys,” he said.


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