The encryption battle has reached an apex this week.
For months, the administration has been sparring with technologists, Silicon Valley and many lawmakers over its push to give government access to encrypted data. On Wednesday, the fight spilled onto Capitol Hill, causing both sides to ramp up their arguments in the days leading up to the hearings.
Officials warned senators that investigators are being thwarted “every day” by encrypted communications and asked for help pressuring companies to comply with court orders seeking the data.
“Our job is to look at a haystack the size of this country for needles that are increasingly invisible to us because of end-to-end encryption,” FBI Director James ComeyJames Brien ComeyTrump draws attention with admission he 'fired Comey' Countering the ongoing Republican delusion How Biden should sell his infrastructure bill MORE told the Senate Judiciary Committee during a hearing.
“I can tell you from personal experience it’s happening, and it’s happening every day,” said Sally YatesSally Caroline YatesFormer Chicago Red Stars players accuse ex-coach of verbal, emotional abuse An unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Sally Yates reveals breast cancer battle MORE, deputy attorney general at the Justice Department (DOJ), adding that the agency didn’t have an exact metric to chart these instances.
Comey has been leading the charge to alert the public that without some type of government access to encrypted data, criminals and terrorists will be able to operate with impunity. Technologists and privacy advocates have vigorously opposed such privileged access, arguing it would cripple worldwide digital privacy and fail to stop criminals.
Several senators, such as Judiciary Committee ranking member Patrick Leahy (D-Vt.), echoed these concerns Wednesday.
“Strong encryption would still be available from foreign providers,” Leahy said. “Some say that any competent Internet user would be able to download strong encryption technology, or install an app allowing encrypted communications, regardless of restrictions on American businesses. But it would put American companies at a disadvantage in the global marketplace.”
But numerous other lawmakers on both sides of the aisle sided with Comey and Yates.
“This is a most serious problem,” said Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Senate Intelligence Committee, where Comey is also slated to testify Wednesday. “I think we need to provide a court-ordered process for obtaining that data.”
Opponents allege the administration's plan amounts to “backdoor” access for governments, a concept anathema to security specialists.
Even if a company, not the government, maintains the key to unlock its its own encryption, that key still exists, allowing efarious hackers to seek it out and use it to pilfer information, they argue.
“It would be bad for our privacy, it would be bad for national security because if you give the good guys keys, it’s likely the bad guys are going to get keys,” Sen. Ron Wyden (D-Ore.), a staunch privacy advocate, told The Hill. “It’s bad economics because it’ll be hard for our companies to retain the confidence of consumers both here and around the country.
The stance, he said, is “a loser on all counts.”
Yates pushed back against the notion.
“We’re not seeking a frontdoor or backdoor or any other kind of door,” she said. “We’re not seeking for the government to have direct access to any of these communications.”
And contrary to numerous reports, Yates insisted the administration does not want Congress to step in, although she wouldn’t rule it out down the line.
“Our goal here is not to mandate a legislative solution,” she said. “But rather to have each provider think about, and work out a way where they will be able to respond to a court order.”
“Lead by persuasion is the way I interpret it,” responded Judiciary Committee head Chuck Grassley (R-Iowa).
Comey painted a disturbing picture of the way the Islamic State in Iraq and Syria (ISIS) is using encrypted communications to evade investigators.
The extremist group is communicating with tens of thousands of Americans through Twitter, he explained, pushing them to either join the cause or commit domestic acts of terror.
“There is a device, almost a devil on their shoulder all day long saying kill, kill, kill, kill,” he said.
“If they find someone, and they have found many of those someones in the United States, that are interested in this, we can see Twitter, we will see them give directions to a mobile messaging app that is end-to-end encrypted, and tell them, 'Contact me here,' ” Comey continued. “And they disappear.”
Thus far, the FBI has been able to follow these cases and thwart potential attacks, he said.
“But it is incredibly difficult,” Comey added. “I cannot see me stopping these indefinitely.”
Many accuse Comey of using scare tactics to overstate the problem. His opponents cite a DOJ report to the Judiciary Committee that showed its wiretaps were foiled a mere four times out of the 25 instances a wiretap encountered encryption in 2014.
Sen. Al Franken (D-Minn.) pressed Yates for specific data.
“We haven’t seen any real data about how often encryption is thwarting investigations,” he said. “Can you shed any light on that? Is that something that could be studied?”
Yates said investigators have stopped even seeking wiretaps for encrypted communications, knowing they will be rebuffed.
“So being able to give you hard numbers on the number of cases that have been impacted is really impossible for us,” she said.
Franken appeared frustrated by the answer. He asked the DOJ to start tracking “the number of times you run into technological challenges and therefore don’t seek a warrant for a wiretap.”
“We need to think about how we think about this,” he said.
"I don’t come with a solution," Comey conceded. "This is a really hard problem."