The FBI director, James Comey, has warned again about the bureau’s inability to access digital devices because of encryption and suggested investigators wanted an “adult conversation” with manufacturers.
Widespread encryption built into smartphones was “making more and more of the room that we are charged to investigate dark”, Comey said at a cybersecurity symposium.
The FBI sought a court order to force Apple to help it hack into an iPhone used by one of the San Bernardino, California shooters, a demand Apple said would dramatically weaken security of its products.
The FBI ultimately got into the phone with the help of a third party, concluding the court case but leaving unresolved the underpinning legal questions.
Comey made clear on Tuesday that he expected dialogue to continue.
“The conversation we’ve been trying to have about this has dipped below public consciousness now, and that’s fine,” Comey said at a symposium organised by Symantec, a technology company. “Because what we want to do is collect information this year so that next year we can have an adult conversation in this country.”
The American people, Comey said, had a reasonable expectation of privacy in private spaces — including houses, cars and electronic devices. But that right was not absolute when law enforcement had probable cause to believe a device such as a laptop or smartphone contained evidence of a crime.
“With good reason, the people of the United States — through judges and law enforcement can invade our private spaces,” Comey said, arguing this “bargain” had been at the centre of the country since its inception.
But he said it was not the role of the FBI or tech companies to tell the American people how to live and govern themselves.
“We need to understand in the FBI, how is this exactly affecting our work, and then share that with folks,” Comey said, conceding the American people might ultimately decide that privacy was more important than “that portion of the room being dark” to the FBI.
The remarks reiterated points that Comey has made repeatedly in the last two years, before Congress and in other settings, about the growing collision between electronic privacy and national security.
The justice department decided within the last year to not seek a legislative resolution to the encryption dilemma and some of the public debate surrounding the FBI’s legal fight with Apple has subsided in the last few months since federal authorities were able to access a locked phone in a terror case without the help of the maker.