Intelligence leaders on Tuesday sidestepped lawmaker questions about whether there should be legislation regulating encryption technology.
“I’m going to have to dodge that because that’s not the FBI’s job to make recommendations,” said FBI Director James Comey in a Senate Intelligence Committee hearing on global threats. “I do think Congress and the American people have to grapple with this.”
“I’m not sure we’ve exhausted all the possibilities here technologically,” Director of National Intelligence James Clapper said. “I would hope that we have not yet exhausted what can be done voluntarily.”
The question, from Sen. Susan CollinsSusan CollinsDems, greens gear up for fight against Trump EPA pick Medicare looms over Trump-Ryan alliance Senators crafting bill to limit deportations under Trump MORE (R-Maine), comes as lawmakers are increasingly divided on the need for legislation to address encryption technology.
Following the deadly terrorist attacks on San Bernardino, Calif., and Paris, fears that terrorists were using encryption technology to plan attacks beyond the reach of U.S. surveillance sparked a number of lawmakers to call for new legislation.
The top two members of the House Intelligence Committee said last week that they have not made any decisions about endorsing a bill regulating encryption standards.
But Senate Intelligence Committee Chairman Richard BurrRichard BurrTop Intel Dem: Congress 'far from consensus' on encryption Trump must be an advocate for the Small Business Administration Dems pledge to fight Sessions nomination MORE (R-N.C.) is working on a bill with the committee’s ranking member, Sen. Dianne FeinsteinDianne FeinsteinDem senator seeks more time for 'due diligence' on Sessions nomination Senate sets date for hearings on Sessions's attorney general nomination Senators move to protect 'Dreamers' MORE (D-Calif.), that would force companies to decrypt data under court order.
Tech companies and cryptologists have pushed back, arguing that providing any guaranteed access to law enforcement opens up the day-to-day functions of the Internet — like banking — to hackers.
Some companies, like Apple, now have default end-to-end encryption on their devices, making it impossible for even the manufacturer to access locked communications. Last fall, Apple rejected a court order to turn over communications sent using its iMessage feature, citing its encryption system.
Clapper, Comey and National Security Agency director Adm. Mike Rogers all expressed the need for a balance between national security interests and cybersecurity. Even Comey, who has historically been strident in his claims that encryption technology prevents investigators from doing their jobs, called it “a good thing” on Tuesday.
He did, however, allude to criminal cases that he says are unsolved because investigators have been unable to crack the encryption on a suspect’s device.
"I don't want a door, I don't want a window, I don't want a sliding glass door, I would like people to comply with court orders,” he told the panel.
Tech experts say what Comey is asking for is still effectively a “back door” and that to provide such access safely is technologically infeasible.
“There have been people that suggest that we should have a backdoor. But the reality is if you put a backdoor in, that backdoor's for everybody, for good guys and bad guys,” Apple CEO Tim Cook said in a December interview with “60 Minutes.”
During the questioning, Collins effectively revealed Clapper’s already-expected retirement at the end of the Obama administration in asking him for his frank assessment of the need for legislation.
“General Clapper, you’re retiring at the end of the year so you don’t have to be careful in answering this question in any way,” she said.