FBI Director James Comey continues to bang the drum about the evils of smartphone encryption and the harm it will do to U.S. law enforcement efforts. Fortunately, few people are persuaded, possibly because Comey himself seems of two minds -- and baffled by technology to boot.
Comey has been on a media tear denouncing the default smartphone encryption provided by Apple, with its recently released iOS 8, and Google, with its next-generation Lollipop Android OS. No one without the passcode -- not even Apple or Google -- can break the encryption, which leaves law enforcement "struggling to keep up" with criminals, Comey said in a speech to the Brookings Institution.
Comey called on Congress to update CALEA to require tech companies to build into their systems "lawful intercept capabilities" (don't call them backdoors), saying mistrust of government in response to the NSA leaks by Edward Snowden "has gone too far."
But in an interview with "60 Minutes" this month, Comey led off by saying, "I believe that Americans should be deeply skeptical of government power. You cannot trust people in power." He then illustrated this by sidestepping the question of whether the FBI gathers electronic surveillance and passes it to the NSA, and insisting (incorrectly) that the FBI can never read your email without a court order.
Tech companies have good reasons for adding extra data protection to their products. And the FBI's own website recommends using encryption on mobile devices "to protect the user's personal data in the case of loss or theft."
"If anything, we should be doing more to secure our data,'' said Christopher Soghoian, principal technologist at the American Civil Liberties Union, noting that major data breaches happen regularly.
But Comey remains fixated on gaining access to smartphones -- never mind that the data can likely be accessed from synced iCloud accounts, and law enforcement can obtain metadata from cell providers, get wiretap orders, conduct warrantless cell tracking, and intercept cellphone calls and all other sorts of unprotected data.
To illustrate what he perceives as a pressing need to access smartphones, Comey told compelling stories about the death of a two-year-old Los Angeles girl, a Louisiana sex offender who killed a 12-year-old boy, and a Sacramento hit-and-run that killed a man -- all law enforcement cases, he said, that required access to the content of phones.
The trouble is, according to a report by The Intercept, "cellphone evidence had nothing to do with the identification or capture of the culprits, and encryption would not remotely have been a factor." (Their results are summed up in the story's URL slug: "FBI Dude Dumb Dumb.")
The Associated Press' investigation similarly concluded that "authorities relied upon evidence beyond what was stored on a cellphone to nab a criminal or secure a conviction."
Comey also equivocates when talking about the need for Congress to mandate access to smartphones. "We aren't seeking a backdoor approach [to encryption]. We want to use the front door, with clarity and transparency, and with clear guidance provided by law." Asked to explain the difference between a front door and a backdoor, Comey replied, "I don't think I am smart enough to tell you what 'front door' means."
Probably because, as Jeffrey Vagle and Matt Blaze point out, there's no technical difference between Comey's "front door" and a backdoor.
Gizmodo points out that Comey is trying to undo legal protections won in the 1990s that "specifically ensure that a company is not required to essentially become an agent of the FBI rather than serving your security and privacy interests." His remarks echo comments made by former FBI Director Louis Freeh nearly 20 years ago:
We're in favor of strong encryption, robust encryption. The country needs it, industry needs it. We just want to make sure we have a trap door and key under some judge's authority where we can get there if somebody is planning a crime.
That argument still fails to persuade, particularly now that the mood of the country has soured on surveillance.The House of Representatives this summer moved to cut off the NSA's backdoor searches, and lawmakers in Congress thus far seem unwilling to heed Comey's call.
A Washington Post editorial is one of the few voices to support Comey and call for a "compromise" on smartphone encryption. While granting that "a police 'back door' for all smartphones is undesirable," the Post said surely "a kind of secure golden key" that could only be used by people with an approved court warrant could be invented.
In the magical kingdom where Comey and the Washington Post editorial board reside, it behooves Apple and Google to invent a golden key that only "good guys" -- never cyber criminals -- can use. They'll get right on it, no doubt ... right after they've caught the Golden Snitch.