Comey says FBI preparing report on law enforcement costs of smartphone encryption

6 August 2016. By Mike Swift.

FBI Director James Comey said Friday that the agency is collecting detailed information about the public safety cost of default encryption on mobile devices and Internet communications in preparation for a post-election debate about privacy next year.

Speaking at an ABA event* in San Francisco a short drive from Silicon Valley, Comey’s remarks appeared to be aimed squarely at Apple and other technology companies that opposed efforts by the FBI and the US Department of Justice to compel Apple to help break the encryption on newer iPhones owned by a accused terrorist in Southern California and a suspected drug dealer in New York.

In a 30-minute speech, Comey suggested that the government is unlikely to bring new court cases against Apple, Google or other tech companies seeking to compel them to help break the encryption on their devices. “Litigation is not the place to solve this problem,” he said, calling the suit the DOJ brought to unlock a suspected terrorist’s iPhone in San Bernardino, California, “necessary” but “counterproductive.”

Comey said a zone of “absolute privacy” beyond the reach of search warrants and court orders created by the powerful default encryption on the newest iPhones and Android devices has created an unprecedented legal situation in the US, one that has made it tougher for law enforcement to protect public safety not just from terrorists, but also from pedophiles and other criminals who use a smartphone.

The “bargain at the heart of the United States of America,” Comey said, is that “your stuff is private, unless, with appropriate authority and appropriate predication, the government needs to look at it.”

“We have never had absolute privacy in this country,” he added, including not in cars, safety deposit boxes, or in “the contents of our minds. … I would suggest to you that where we are now, where we are heading, shatters the bargain at the heart of our country.”

During the past 10 months, Comey said, the FBI has received about 5,000 encrypted smartphones and other devices from state and local law enforcement; the FBI has been unable to access 650 of them, or about 13 percent.

“They are a brick to us,” Comey said. “Those are cases unmade. That’s evidence unfound. That has a significant impact on our work.”

Once the presidential election is over, Comey said the FBI plans to release a report with data about encryption’s impact on law enforcement.

“We will spend this year collecting information about how this affects us; we will share that with the American people next year and try to foster a conversation,” he said, calling the debate too complex to engage in during an election year.

For the most part, Comey, who has about seven years to run on a 10-year term, aimed for a conciliatory tone with tech companies. He began his talk describing in detail how under the glass on his desk, he keeps a copy of the letter that former FBI director J. Edgar Hoover sent to then-Attorney General Robert F. Kennedy in 1963 seeking unlimited authority to tap the phone of the Rev. Martin Luther King Jr.

“I keep it as a reminder, not to pick on Bobby Kennedy or to pick on J. Edgar Hoover,” he said, but as a reminder of “the dangers of being unconstrained.”

On the encryption debate, “I’m a believer there are no devils in this conversation. The tech companies are not evil, nor is the FBI,” he said, saying the companies and the agency “share the same values.”

Nevertheless, Comey did single out the tech companies for a letter they sent to President Obama defending the need for device encryption, saying he was disheartened that the companies never mentioned the impact of default encryption on law enforcement and public safety.

“There was no recognition of the cost on the public safety side of widespread strong encryption. I thought, either they don’t see it … or they aren’t being fair-minded.”

In a panel discussion after Comey spoke, Marc Rotenberg, executive director of the Electronic Privacy Information Center, a Washington DC privacy group, noted that without default encryption, the contents of the more than 3 million mobile phones stolen each year would be vulnerable to criminals.

“That’s a big, big number and those devices are containing more and more information,” Rotenberg said. “They control our cars. … They have biometric identifiers on them.”

Rotenberg also disputed Comey’s contention that there is no absolute privacy under US law, saying “legally, that’s not true,” and that conversation between a lawyer and her client “if you don’t misuse it, is a form of absolute protection.”

*American Bar Association, 2016 Annual Meeting, August 5, San Francisco, California

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