WASHINGTON — FBI Director James Comey warned again Tuesday about the bureau’s inability to access digital devices because of encryption and said investigators were collecting information about the challenge in preparation for an “adult conversation” next year.
Widespread encryption built into smartphones is “making more and more of the room that we are charged to investigate dark,” Comey said in a cybersecurity symposium.
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, and some of the public debate surrounding the FBI’s legal fight with Apple Inc. 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 technology giant.
The FBI this year 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 the tech giant said would dramatically weaken security of its products.The FBI ultimately got into the phone with the help of an unidentified third party, concluding the court case but leaving unresolved the underpinning legal questions.
Comey made clear Tuesday he expects that 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 organized 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, he said, have a reasonable expectation of privacy in private spaces — including houses, cars and electronic devices. But that right is not absolute when law enforcement has probable cause to believe that there’s evidence of a crime in one of those places, including a laptop or smartphone.
“With good reason, the people of the United States — through judges and law enforcement — can invade our private spaces,” Comey said, adding that that “bargain” has been at the center of the country since its inception.
He said it’s 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 its privacy was more important than “that portion of the room being dark” to the FBI.
He also stood by the Justice Department’s decision to bring indictments against Chinese and Iranian officials in major cyberattack cases in the last two years, rejecting criticism from those who call criminal charges meaningless gestures unlikely to result in convictions.
“We want to lock some people up, so that we send a message that it’s not a freebie to kick in the door, metaphorically, of an American company or private citizen and steal what matters to them,” Comey said. “And if we can’t lock people up, we want to call (them) out. We want to name and shame through indictments, or sanctions, or public relation campaigns —who is doing this and exactly what they’re doing.”
Those actions can make a foreign defendant think twice before traveling overseas, and can deter governments. He maintained that there’s been progress with the Chinese government since 2014 indictments that accused five Chinese military officials of siphoning secrets from American corporations.
“We are working hard to make people at keyboards feel our breath on their necks and try to change that behavior,” he said. “We’ve got to get to a point where we can reach them as easily as they can reach us and change behavior by that reach-out.”