FBI hotly criticizes encryption

WASHINGTON – The FBI director on Thursday criticized the decision by Apple and Google to encrypt smartphone data so it can be inaccessible to law enforcement, even with a court order.

James Comey told reporters at FBI headquarters that U.S. officials are in talks with the two companies, which he accused of marketing products that would let people put themselves beyond the law’s reach.

Comey cited child-kidnapping and terrorism cases as two examples of situations in which quick access by authorities to information on cellphones can save lives. Comey did not cite specific past cases that would have been more difficult for the FBI to investigate under the new policies, which only involve physical access to a suspect’s or victim’s phone when the owner is unable or unwilling to unlock it for authorities.

“What concerns me about this is companies marketing something expressly to allow people to hold themselves beyond the law,” Comey said. At another point, he said he feared a moment “when people with tears in their eyes look at me and say, ‘What do you mean you can’t?’ ”

Comey said he was gathering more information about the issue and would have more to say about it later.

Even under the companies’ new policies, law enforcement still could access a person’s cellphone data that has been backed up to the companies’ online-storage services. They also still could retrieve real-time phone records and logs of text messages, and they still could obtain wiretaps to eavesdrop on all calls made with the phones.

Apple, in an explanation of its new policy, says on its website that on devices running its new operating system, “your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession.”

Comey’s criticism closely tracked complaints earlier this week by Ronald T. Hosko, a former FBI assistant criminal division director who wrote in the Washington Post that the new policies would have resulted in the death of a hostage in a recent North Carolina kidnapping.

The newspaper subsequently corrected Hosko’s claims after concluding that the new encryption systems would not have hindered the FBI’s rescue of the kidnap victim in Wake Forest, North Carolina. In that case, the FBI pulled telephone records associated with the number used to contact the victim’s family for the ransom demand and eventually obtained a traditional wiretap to eavesdrop on the kidnappers’ conversations and locate and rescue the victim.

Commenting on Comey’s remarks Thursday, Matt Blaze, a computer security researcher and professor at the University of Pennsylvania, said, “It’s disappointing that the FBI has chosen to focus on examples where encryption might potentially slow hypothetical investigations, while ignoring the fact that strong, reliable encryption is the only way we have to prevent a wide range of very real and very serious crimes.”