FBI Chief Comey Hints At Phone Encryption Regulations Suggesting The Pendulum Of Privacy Has ‘Swung Too Far’

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On Thursday, FBI director James B. Comey made a speech urging Apple and Google to reconsider the decision to offer customers devices equipped with advanced encryption by default.

With Apple’s latest mobile operating system, user-generated content such as photos, documents, text messages and other sensitive data stored on the device, is now fully encrypted so that even Apple cannot access it if compelled by authorities. Google is soon to follow suit by offering full encryption for its Android devices as well, leading FBI director Comey’s extensive commentary in which he suggested that, "the post-Snowden pendulum” had swung too far in the direction of fear and mistrust.

Maintaining that the FBI has a sworn duty to “keep every American safe from crime and terrorism,” Comey asserts full encryption of smartphone data stands in the way of authorities doing what they’ve been charged to do as public servants.

“It frustrates me, because I want people to understand that law enforcement needs to be able to access communications and information to bring people to justice,” said Comey. “We do so pursuant to the rule of law, with clear guidance and strict oversight. But even with lawful authority, we may not be able to access the evidence and the information we need.”

Comey went on to suggest a need for a “regulatory or legislative fix” that would force companies like Google and Apple to provide a backdoor or golden key for the government to unlock the photos, emails and contacts stored on the phones.

“Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.”

While calling Apple and Google companies, run by “good people, responding to what they perceive is a market demand,” Comey added that, “The place they are leading us is one we shouldn’t go to without careful thought and debate as a country.”

The speech made by the FBI director Comey has struck a chord with many privacy-concerned citizens on social media sites like Facebook and Twitter. Meanwhile, notable privacy advocates in fields of law, forensic research and cryptography have spoken out in response to the speech.

“Comey said Apple and Google are companies  ‘run by good people, responding to what they perceive is a market demand, but the place they are leading us is one we shouldn’t go to without careful thought and debate as a country.’ My response: Not so,” said Nate Cardozo, Staff Attorney on the Electronic Frontier Foundation's digital civil liberties team.

“The intelligence community and its shockingly broad ‘collect it all’ mentality is what's lead us to this place. We should have had the debate before the US government began its campaign of suspicionless mass surveillance.”

To that forensics researcher Jonathan Zdziarski added,

“The government has never been entitled to all of the data I store privately. Never. Lazy investigators have assumed that entitlement. Computer forensics has gotten to the age of the ‘easy button’, and law enforcement feels entitled today, more than ever, to all of our data. The Fourth Amendment, which guards against unreasonable searches and seizures of property by the government is there to protect the people from their government. It does not guarantee that, with a warrant, the government is entitled to my data.”

Meanwhile, Matthew Green, cryptography instructor at Johns Hopkins University, suggests that the regulatory actions hinted at by Comey could have negative implications for US tech companies’ international trade relationships.

“I'd say that Apple understands its market far better than the FBI does and while US consumers have been relatively unhappy about the NSA revelations, those revelations have been utterly devastating to non-US consumers. I don't think it would be overblown to say that fears of US government surveillance represent the biggest threat to the continued success of US tech exports. What Apple is trying to do here is, essentially, strike a balance that restores international trust in US products. I don't want to minimize Comey's concerns, but a small number of locked phones needs to be set against the jobs we'll lose if US tech products become untouchable overseas.”

Comey closed his speech Thursday stating that, while he didn’t have a perfect solution, that he found it important to start a discussion on regulation.

“I’m happy to work with Congress, with our partners in the private sector, with my law enforcement and national security counterparts, and with the people we serve, to find the right answer—to find the balance we need.”

In the days and weeks following Comey’s speech, discussion regarding its content is sure to continue. 

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