FBI Director Urges New Encryption Legislation

Though encryption is one of the strongest tools in the data security and privacy compliance toolkit, unchecked encryption could "lead us all to a very, very dark place," in which murderers, child abusers, and other criminals walk free, according to FBI Director James Comey.

"The place that this is leading us is one that I would suggest we shouldn't go without careful thought and public debate," Comey said at an event at the Brookings Institute in Washington.

He was responding to new moves by Apple and Google to expand encryption capabilities on iOS and Android devices. Google has announced it will provide data encryption by default in its next version of Android. Apple recently added two-factor authentication to iCloud and has created new encryption offerings on iOS 8 that give the encryption keys to the customer -- the idea being that, if Apple does not retain the keys, it cannot decrypt customers' data, even if the government demands it.

These measures are cloud services' and mobile device companies' way of regaining the trust of customers concerned about the US government's history of subpoenaing these companies for access to individuals' communications and private data.

[Read about new "encryption-in-use" technologies that keep keys in the hands of consumers, not cloud companies.]

Consumers and privacy advocates applaud those efforts, but Comey cautioned that they could come at a terrible price.

"If this becomes the norm, I suggest to you that homicide cases could be stalled, suspects walked free, child exploitation not discovered and prosecuted," he said. "Law enforcement needs to be able to access communications in a lawful way in order to bring people to justice. Those charged with protecting our people aren't able to access the evidence we need, even with lawful authority."

Though they may obtain the legal authority to intercept communications and access other information with court orders, he said, they often lack the technical ability to crack open that data once they have it. "Unfortunately, the law hasn't kept pace with technology, and this disconnect has created a significant public safety problem."

Comey suggested that the Communications Assistance for Law Enforcement Act, enacted in 1994, is due for an update. CALEA was created because of the FBI's concern that use of digital telephone exchange switches would obstruct intelligence agencies' ability to tap phones. The act required telecoms and telecom equipment suppliers to build in surveillance capabilities so that the government could actually conduct wiretaps if they first obtained lawful authority to do so. The act was expanded over the years to cover VoIP and broadband Internet, as well, but Comey suggested that the act must be updated again with high-level encryption in mind.

"We are not seeking a backdoor approach," he said. "We are completely comfortable with court orders and lawful authority. With sophisticated encryption, there may be no solution at all, leaving us at a dead end."