FBI Chief Admits It’s Impossible to Ban All Encryption

The government can at least make it harder to hide from surveillance, James Comey says.

FBI Director James Comey testifies before the Senate Judiciary Committee on Wednesday.
AP Photo/Susan Walsh
Dec. 9, 2015, 2:40 p.m.

FBI Dir­ect­or James Comey ac­know­ledged Wed­nes­day that de­term­ined ter­ror­ists and crim­in­als will al­ways have ways to hide their com­mu­nic­a­tions from the gov­ern­ment.

Even if Con­gress re­quires U.S. tech com­pan­ies to guar­an­tee ac­cess to their devices and ser­vices, there will likely still be for­eign com­pan­ies that of­fer strong en­cryp­tion, Comey said dur­ing a Sen­ate Ju­di­ciary Com­mit­tee hear­ing. And soph­ist­ic­ated ter­ror­ists could even build their own en­cryp­ted-mes­saging apps, he ad­mit­ted. En­cryp­tion scrambles com­mu­nic­a­tions, leav­ing only mean­ing­less gib­ber­ish to any­one who doesn’t have the right “key” to un­lock the mes­sage.

“I think there’s no way we solve this en­tire prob­lem,” Comey ac­know­ledged. “En­cryp­tion is al­ways go­ing to be avail­able to the soph­ist­ic­ated user.”

The ad­mis­sion may seem to un­der­mine Comey’s push for broad­er gov­ern­ment ac­cess to data. But, ac­cord­ing to the FBI chief, even though there’s no per­fect solu­tion, it’s still worth mak­ing it harder for ter­ror­ists to es­cape sur­veil­lance.

“The prob­lem we face post-Snowden is, it’s moved from be­ing avail­able to the soph­ist­ic­ated bad guy to be­ing the de­fault. And so it’s af­fect­ing every crim­in­al in­vest­ig­a­tion. I agree there’s no way to solve this en­tire prob­lem, but I still think it’s worth try­ing to solve a big chunk of it.”

Comey first began warn­ing of the prob­lem of crim­in­als us­ing en­cryp­tion to “go dark” from sur­veil­lance in a speech last year. Com­pan­ies shouldn’t of­fer ser­vices that make it im­possible for them to re­spond to war­rants or oth­er leg­al or­ders for in­form­a­tion, Comey has been ar­guing. The re­cent ter­ror­ist at­tacks in Par­is and San Bern­ardino have cre­ated mo­mentum on Cap­it­ol Hill to try to ad­dress the is­sue.

Sen. Di­anne Fein­stein, a Cali­for­nia Demo­crat, said dur­ing Wed­nes­day’s hear­ing that she plans to in­tro­duce le­gis­la­tion along with Sen. Richard Burr, a North Car­o­lina Re­pub­lic­an, to “pierce” en­cryp­tion. “I have con­cern about a Play­Sta­tion that my grand­chil­dren might use and a pred­at­or get­ting on the oth­er end, and talk­ing to them, and it’s all en­cryp­ted,” she said. “I think there really is reas­on to have the abil­ity, with a court or­der, to be able to get in­to that.”

But tech com­pan­ies and civil liber­ties ad­voc­ates ar­gue that en­cryp­tion makes the In­ter­net more se­cure. Any law re­quir­ing weak­er en­cryp­tion would make it easi­er for ma­li­cious hack­ers to steal sens­it­ive in­form­a­tion, they say.

Comey dis­missed that ar­gu­ment Wed­nes­day. “It’s not a se­cur­ity is­sue. It’s a busi­ness-mod­el is­sue,” he said, ar­guing that con­sumers should pres­sure tech com­pan­ies to help the gov­ern­ment catch crim­in­als and ter­ror­ists.

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