Susan Walsh/AP

FBI Director: It’s Impossible to Ban All Encryption

The government can at least make it harder to hide from surveillance, James Comey says.

FBI Dir­ect­or James Comey ac­know­ledged Wed­nes­day that de­term­ined ter­ror­ists and crim­in­als will al­ways have ways to hide their com­mu­nic­a­tions from the gov­ern­ment.

Even if Con­gress re­quires U.S. tech com­pan­ies to guar­an­tee ac­cess to their devices and ser­vices, there will likely still be for­eign com­pan­ies that of­fer strong en­cryp­tion, Comey said dur­ing a Sen­ate Ju­di­ciary Com­mit­tee hear­ing. And soph­ist­ic­ated ter­ror­ists could even build their own en­cryp­ted mes­saging apps, he ad­mit­ted. En­cryp­tion scrambles com­mu­nic­a­tions, leav­ing only mean­ing­less gib­ber­ish to any­one who doesn’t have the right “key” to un­lock the mes­sage.

“I think there’s no way we solve this en­tire prob­lem,” Comey ac­know­ledged. “En­cryp­tion is al­ways go­ing to be avail­able to the soph­ist­ic­ated user.”

The ad­mis­sion may seem to un­der­mine Comey’s push for broad­er gov­ern­ment ac­cess to data. But, ac­cord­ing to the FBI chief, even though there’s no per­fect solu­tion, it’s still worth mak­ing it harder for ter­ror­ists to es­cape sur­veil­lance.

“The prob­lem we face post-Snowden is, it’s moved from be­ing avail­able to the soph­ist­ic­ated bad guy to be­ing the de­fault. And so it’s af­fect­ing every crim­in­al in­vest­ig­a­tion. I agree there’s no way to solve this en­tire prob­lem, but I still think it’s worth try­ing to solve a big chunk of it.”

Comey first began warn­ing of the prob­lem of crim­in­als us­ing en­cryp­tion to “go dark” from sur­veil­lance in a speech last year. Com­pan­ies shouldn’t of­fer ser­vices that make it im­possible for them to re­spond to war­rants or oth­er leg­al or­ders for in­form­a­tion, Comey has been ar­guing. The re­cent ter­ror­ist at­tacks in Par­is and San Bern­ardino have cre­ated mo­mentum on Cap­it­ol Hill to try to ad­dress the is­sue.

Sen. Di­anne Fein­stein, a Cali­for­nia Demo­crat, said dur­ing Wed­nes­day’s hear­ing that she plans to in­tro­duce le­gis­la­tion along with Sen. Richard Burr, a North Car­o­lina Re­pub­lic­an, to “pierce” en­cryp­tion. “I have con­cern about a Play­Sta­tion that my grand­chil­dren might use and a pred­at­or get­ting on the oth­er end, and talk­ing to them, and it’s all en­cryp­ted,” she said. “I think there really is reas­on to have the abil­ity, with a court or­der, to be able to get in­to that.”

But tech com­pan­ies and civil liber­ties ad­voc­ates ar­gue that en­cryp­tion makes the In­ter­net more se­cure. Any law re­quir­ing weak­er en­cryp­tion would make it easi­er for ma­li­cious hack­ers to steal sens­it­ive in­form­a­tion, they say.

Comey dis­missed that ar­gu­ment Wed­nes­day. “It’s not a se­cur­ity is­sue. It’s a busi­ness-mod­el is­sue,” he said, ar­guing that con­sumers should pres­sure tech com­pan­ies to help the gov­ern­ment catch crim­in­als and ter­ror­ists.

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