FBI director: Encryption 'the hardest question I’ve seen in government'

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FBI Director James Comey on Thursday told lawmakers that encryption is “the hardest question I’ve seen in government.”

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“I think the larger question is not going to be answered in the courts and shouldn’t be, because it’s really about who do we want to be and how do we want to govern ourselves,” Comey said during a House Intelligence Committee hearing on Thursday.

Comey’s testimony comes a week after a federal judge ordered Apple to help the FBI by unlocking the iPhone of San Bernardino shooter Syed Rizwan Farook. The tech giant is opposing the order on the grounds that it would set a “dangerous precedent” that would undermine the privacy and security of its flagship product.

Comey said Thursday that it is not his intention to undermine online privacy by forcing policy changes.

"I've been very keen to keep the Bureau out of the policy-making business. I think our role is to make folks understand what are the costs associated with moving to a world of universal strong encryption," Comey said.

"I love encryption. I love privacy," he added.

The Apple court order has become a heated case study in a long-running debate over the access that law enforcement should have into locked communications. Comey has long argued that impenetrable encryption is stymieing investigations by locking out officials who have the appropriate warrants to access a suspect's device.

Technologists and privacy advocates have pushed back, insisting that impenetrable encryption is indispensable to online security and privacy. 

Rep. Adam SchiffAdam SchiffUS reveals death toll from terror strikes outside war zones The Hill's 12:30 Report Dems release parallel Benghazi report ahead of GOP MORE (D-Calif.) pressed Comey on whether the Apple case will set a precedent that prosecutors will use to force the company to unlock other iPhones in the future, effectively shifting encryption policy.

“I don’t see a limiting principle — if that argument is accepted by the court in this case, won’t it lead district attorneys and other prosecutors around the country to essentially make the same argument in their cases?” the committee's ranking member asked.

“While the result may only affect this phone, the precedent may be there for many others,” he added.

The government is attempting to use an 18th-century law called the All Writs Act to compel Apple to disable a key security feature on Farook’s county-owned work phone.

Critics have warned that a ruling in the government's favor would set a precedent that would inappropriately broaden the scope of the law.

The 1789 law allows federal judges to compel others to help the government perform its duties so long as requests are not "unduly burdensome.” Comey noted Thursday that it has been used by investigators for “hundreds of years.”

The FBI director on Thursday also allowed that a decision in the case could be “instructive” for other courts, a subtle shift from the position he staked on Sunday that it was “not about setting a precedent.”

“A decision by a judge will guide how other courts handle similar requests. How judges interpret that is not binding, but will be important, so I think that’s fair to say,” Comey said, responding to Schiff’s contention that there will be a precedent.

But he also argued that the case is specifically tailored to Farook’s phone.

“Experts have told me the combination of a 5c and this particular operating system is sufficiently unusual that it’s unlikely to be a trailblazer because of technology being the limiting principle,” Comey said.

Specifically, the court order compels the tech giant to write a piece of code disabling a failsafe that triggers the phone to wipe its own memory if an incorrect password is attempted 10 times in a row. Such a change would allow the FBI to hack into the device.

Comey insisted Thursday that the code — which Apple says does not exist — “works only on this one phone.”

Apple has argued stridently that the use of the All Writs Act in this case is governmental overreach, an assessment largely backed by the technology industry.

“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data,” Apple CEO Tim Cook warned last week when he announced the company would be opposing the agency’s demands.

—This report was updated at 11:08 a.m.