The request for heightened authority was publicly revealed in a speech by FBI Director James Comey on Oct. 16. He argued that privacy marketing trends led by Google and Apple — in addition to varied communication methods from apps — has handicapped the bureau investigations. If trends such as encryption and other privacy methods continue, Comey warned it may encumber the FBI’s ability to enforce the law.
“Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem,” Comey said. “We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.”
The rapid growth of new communication methods was listed as the primary culprit. Comey said in the past all that was needed for electronic surveillance was to identify a phone or device and its carrier. Then, with approval of a court order, law enforcement could easily gather evidence.
“Today, there are countless providers, countless networks, and countless means of communicating,” Comey said.
Perpetrators, he explained, use the multiplicity of communication methods to hide their movements and data. A conversation that jumps from chat, to text, to video conference, for example, could derail an entire surveillance operation. And since tech companies are not compelled to develop interception methods into apps — it costing time and money — they often can’t comply with court orders.
“What this means is that an order from a judge to monitor a suspect’s communication may amount to nothing more than a piece of paper,” Comey said.
The recent default encryption deployed in computer operating systems from Apple and Google further disable interceptions. Though it’s true the FBI can access cloud data via court orders, Comey said it is sometimes impossible to hack into encrypted files saved on devices. In the court system, this enables criminals to serve 30 days in prison for contempt to disclose information rather than 30-year sentences.
The Communications Assistance for Law Enforcement Act (CALEA), enacted in 1994, governs the interception and wiretapping practices. Comey called it outdated and said it should be updated to mandate all software and hardware providers to develop interception methods into their products and services.
“Some believe that the FBI has these phenomenal capabilities to access any information at any time,” Comey said. “It may be true in the movies or on TV. [But] it is simply not the case in real life.”
According to an article from the National Journal, officials from the House of Representatives, FBI and Justice Department held a classified briefing in October about encryption’s detrimental effect on police investigations. However, what legislation develops as a result, or whether similar briefings are held for the Senate, is unclear. In a related note, the FBI’s larger campaign for expanded authority manifested itself again on Nov. 5 when officials contended with tech advocates to extend the reach of search warrants. The amendment, considered for addition to rule 41 of the federal rules of criminal procedure, would permit judges to issue warrants that allow hacks into any computer without listing the specific device or location. According to the Guardian, is is hoped that the amendment will help law enforcement to bypass popular search tools and Internet browsers like Tor that anonymize a user’s location.
The heavy handed push from the FBI may seem politically counterproductive in a time of so much backlash from citizens and the tech community. Consumers have not forgotten Edward Snowden’s leak of NSA surveillance tactics. Similarly, major tech providers like Google, Microsoft, Apple and Twitter have been adamant in their campaign to preserve consumer privacy — Twitter suing the U.S. government in October for limits on its ability to notify citizens of surveillance.
