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The FBI Wants Tech Companies To Reconsider Their Stance On Encryption

The director of the FBI said providing lawful access to encrypted communication is not a technological challenge but a question of business imperatives.

Posted on December 9, 2015, at 4:42 p.m. ET

Federal Bureau of Investigation Director James Comey.
Chip Somodevilla / Getty Images

Federal Bureau of Investigation Director James Comey.

In the latest clash between Silicon Valley and the U.S. government, FBI Director James Comey called on tech companies to reconsider offering strong encryption as the use of secure messaging becomes common practice for terror organizations and criminals.

U.S. officials, including Comey, argue that secure messaging places dangerous, lawbreaking individuals outside the reach of justice. But in October, the Obama administration decided not to seek legislation forcing companies to build special access keys into their products, known as “backdoors.” In the aftermath of terrorism in Paris and San Bernardino, however, lawmakers have again pushed for privileged government access into encrypted devices.

“We've had good conversations with the folks in the tech sector,” Comey said Wednesday during a hearing in the Senate Judiciary Committee. “We understand that encryption is a very important part of being secure on the internet.” Comey acknowledged that both parties recognize there's a seemingly intractable tension between public safety and internet security.

“We see that encryption is getting in the way of our ability to have court orders effective to gather information,” he said.

After numerous meetings with technology companies, Comey said he’s come to realize that granting special access to law enforcement is not a technological problem, but a question of business imperatives.

“Lots of good people have designed their systems and their devices so that judges’ orders cannot be complied with for reasons that I understand — I’m not questioning their motivations. The question we have to ask is: Should they change their business model?”

The FBI director did not offer any suggestions as to how such a change might work. For now, he hopes that companies will figure out on their own how to supply readable communications to judges who have issued court orders. And he reiterated the position that the administration does not support backdoors: “The government shouldn't be telling people how to operate their systems.”

Comey was limited to commenting on the investigations in Paris and San Bernardino and did not provide evidence that the attackers encrypted their communications. The FBI, he said, is collecting data that will reveal how encryption interferes with law enforcement work against terror plots and criminal conspiracies. “There is no doubt that the use of encryption is part of terrorist tradecraft,” he said. “They understand the problems we have getting court orders to be effective when they are using these mobile messaging apps.”

While neither Comey nor administration officials are pushing for new encryption laws, Sen. Dianne Feinstein, a California Democrat, spoke in favor of government intervention. After Comey would not commit to supporting mandated encryption rules, Feinstein rebutted: “Well, I’m going to seek legislation if nobody else is.”

After meeting with technology companies and learning that certain communications cannot be decrypted or otherwise made readable to law enforcement, Sen. Feinstein said she will seek legislation that would limit the tech industry’s ability to offer end-to-end encryption, arguing that, in certain court-mandated instances, “encryption ought to be able to be pierced.”

“I have concern about a PlayStation, which my grandchildren might use, and a predator getting on the other end talking to them — and it's all encrypted,” she told the committee.

Comey replied: “I would very much like to get to a world where if a judge issues an order, companies are able to comply with it. Either to unlock a device or to provide the communications between terrorists or between drug dealers or kidnappers.”

While the congressional panel was largely sympathetic to the FBI director’s comments on encryption, Sen. Mike Lee, a Republican from Utah, posed an argument to Comey that has been used effectively by technology firms and civil society groups: If American companies are compelled to offer weaker security products, won’t sophisticated criminals and smart consumers just use foreign ones, leaving U.S. firms and citizens disadvantaged?

“There is no way to solve this entire problem,” Comey offered in response.

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