By Nicole Arce
Federal Bureau of Investigation director James Comey once again slams Apple and Google for enabling new mobile device privacy features that prevent anyone except the device’s owner from gaining access to the contents of their device.
In an interview with 60 Minutes aired over CBS, Comey says enabling data encryption on Apple’s latest iPhones is something that pedophiles, kidnappers and terrorists celebrate because the features help “put people beyond the law.”
The functionality, which Apple says will come standard with all iPhones and iPads and will also become default on Google’s upcoming Android L, puts users’ messages, email, pictures and other content under lock and key, and only those who have a passcode to decrypt those contents will be available to view it.
“The notion that we would market devices that allow someone to place themselves beyond the law troubles me a lot,” Comey tells CBS anchor Scott Pelley. “As a country, I don’t know why we would want to put people beyond the law.”
The FBI chief likens encrypted smartphones to car trunks that can never be opened by law enforcement, or apartments that authorities cannot enter. Comey says Apple and Google are affording criminals a way to escape the law by providing them with a way to conceal their activities from the government.
“The notion that people have devices, again, that with court orders, based on a showing of probable cause in a case involving kidnapping or child exploitation or terrorism, we could never open that phone?” he says. “My sense is that we’ve gone too far when we’ve gone there.”
CNN’s Jose Pagliery, however, points out two inaccuracies in Comey’s statement. First, the FBI can still obtain a user’s smartphone data with a warrant handed out by a judge. However, instead of secretly going at Apple or Google to compel them to hand over user data without the user knowing about it, the FBI has to go to a user’s location and access his phone physically, in the same way authorities go to a suspect’s physical address to search his home with a warrant. The only real difference phone encryption makes is government agencies will not be able to obtain data and keep their operations under wraps.
“This is going to make it harder for law enforcement,” says lawyer Joel Kurtzberg, who specializes in First Amendment cases. “And it will result in instances where someone will destroy evidence.”
Second, forcing technology companies to keep a backdoor open for the government leaves user information ripe for the picking not just for law enforcement but for cyber criminals as well. With an encryption key, nobody but the device owner has access to the device’s contents. Without this, hackers from all over the world can easily spy on users’ private lives.
Comey, however, emphasizes that there are restrictions and oversight powers in place, saying that the FBI does not conduct electronic surveillance without a court order. Comey says the FBI needs to go to a federal judge to show probable cause that a person is a suspected criminal before being allowed to read the person’s messages, open his email, and listen in on phone calls.
Asked if the agency conducts electronic surveillance and passes on data to the National Security Agency, Comey says the topic is “one of those things I don’t know whether I can talk about that in an open setting.”