FBI Head Wants Privacy — and Access to Terrorists’ Messages

Comey was fired Tuesday. (Rob Kunzig/Morning Consult)

“I love encryption. I love privacy.”

These were the words Thursday of the head of the Federal Bureau of Investigation, James Comey. His remarks came just a day before the deadline when Apple will be required to either comply with a court order compelling its assistance to break into a locked iPhone, or file an appeal.

The FBI requested the court order in its investigation into the San Bernardino mass shooting last year. Apple is refusing to help. The dispute has set off a firestorm of protest from the tech community and privacy advocates. They are worried that if Apple is forced to comply, others could be subjected to similar searches whenever the government needs encrypted information.

At a hearing, Comey tried to tamp down some of the furor. He told the House Intelligence Committee he wants the FBI to stay out of making policies or setting precedents and stressed his love for technologies that enable Americans to keep their communications private.

Yet he also said it is crucial to access the content of messages to pursue violent criminals and terrorists. There are “increasing situations where we cannot with lawful court orders read the communications of terrorists, gang bangers, pedophiles, all different kinds of bad people,” he said.

That’s the tone intelligence bigwigs are required to take at this point, as a fragile conversation unwinds in the American public that weighs protecting civil liberties and the security of the internet against the ability of law enforcement to keep the country secure.

Comey accompanied five of the highest-ranking U.S. intelligence officials to a rare open hearing on worldwide threats. But much of the conversation was directed at him as the meeting became an open forum delving into the FBI’s ongoing saga with Apple.

Comey assured the panel the San Bernardino case represents a simple request to obtain information in one investigation. “The San Bernardino litigation is not about us trying to send a message or establish some precedent, it really isn’t,” Comey emphasized. “It’s about trying to be competent in investigating something that is an active investigation.”

Some critics have hinted that the FBI actually could have broken into the iPhone on its own but wanted to use this case to set a precedent for later investigations. Comey scoffed at that assertion, saying those claims are influenced by the FBI’s portrayal on TV.

But then he hinted that precedent might be set anyway. The decision on Apple, however it goes, “will be instructive for other courts, and there may well be other cases that involve the same kind of phone and the same operating system,” he said.

He added that cases such as San Bernardino and another in Brooklyn, N.Y., also involving Apple, “will guide how other courts handle similar requests.”

Rep. Jim Himes (D-Conn.) asked about the implications on the security of technology that Americans use on a daily basis. “If you prevail and if this code is written, this code will exist presumably on a server at Apple, and that creates a very substantial threat,” Himes said. “If this code exists on a server at Apple, it will presumably become the target of our sovereign adversaries, of criminal enterprises, of terrorists. And you don’t need to think too hard to spin some pretty ugly scenarios if that code gets out into the wild.”

Comey said experts have told him the code ordered from Apple would only work on the shooter’s iPhone. The notion that the code could get out into the world and work for other phones “is not a real thing,” he said.

Most in the tech industry vehemently disagree with that conclusion. Bijan Madhani, who works as privacy counsel at the Computer & Communications Industry Association, told Morning Consult mandating companies to create backdoors to their encryption would harm the overall “internet ecosystem.”

Still, the other intelligence directors backed up Comey’s assertions that strong encryption poses a great threat to agencies seeking contents of messages when investigating terrorism or crimes.

“The ability of these terrorists to communicate with one another in manners that make it very difficult for us to uncover has been increasing, and it is very frustrating but also very concerning,” said Central Intelligence Agency Director John Brennan. “It has made our challenges very difficult.”

Comey and Deputy Director of the National Security Agency Rick Ledgett both said that knowing the content of encrypted messages is essential for going after terrorists.“It’s one thing to know that a person is in a particular place at a particular time,” Ledgett said. “It’s something else entirely and necessary to understanding and defeating terrorist plots to know what the target is, what the timing is, how the attack is going to develop.”

Morning Consult