FBI Chief: Your iPhone 6 Is a Threat

FBI Director James Comey is calling for a change in the law that would give the government even greater access to private information like emails and smartphone photos, a controversial proposal certain to add new fuel to the simmering debate over privacy rights in the digital age.

At issue is a 20-year-old statute that requires telecommunications companies to build their systems so that they can be tapped should the government present the companies with a court order to hand over information.

But the law has never clearly applied to all technology and Internet companies — particularly giants such as Apple and Google. Now Comey wants to change that and require the firms to put in place similar equipment that would ensure that the government can always obtain a criminal suspect’s emails, text messages, photographs, and other information that is increasingly stored on smartphones.

In a speech at the Brookings Institution on Thursday, Comey for the first time called for a change in the existing law, known by the acronym CALEA, in order to keep the FBI and other law enforcement agencies from "going dark" when investigating suspected criminals. Under the current regime, he said, there are cases where the authorities cannot get access to communications and other data, either because a company refuses to provide them or because the government lacks the technological equipment to conduct court-approved surveillance.

Comey’s remarks were his most expansive to date on the potential ways of expanding existing laws on government surveillance, and they follow his recent public rebuke of Apple for building its latest version of the wildly popular iPhone with an encryption setting that makes it impossible for the company to provide law enforcement with the information contained in the owner’s phone. Only the owner himself has the code to unscramble the phone’s information, and, Comey said, no criminal suspect would ever do so voluntarily.

"No one in this country should be beyond the law," said Comey, who became the seventh FBI director in September 2013. Comey said that Apple’s decision, and those of other companies, such as Google, which are increasingly building nearly unbreakable encryption into their products, reflect an understandable but misguided reaction to the revelations of widespread government surveillance by former NSA contractor Edward Snowden.

Comey said that the "post-Snowden pendulum" has swung too far away from maintaining the government’s ability to conduct lawful surveillance as quickly and easily as possible.

Comey listed several investigations, including those of murder and child exploitation, in which law enforcement officers were able to crack cases by examining information on a suspect’s smartphone. In one case from Louisiana, police found evidence on a phone that led to the conviction of a man for murdering a 12-year-old boy, who lured the child into his car by posing online as another child. The suspect received the death penalty. Comey said that if companies like Apple can’t be compelled to hand over phone information, future cases could go unsolved.

But during a question-and-answer session with audience members, Comey said he was unable to point to a single case in which law enforcement was able to prevent a crime, such as rescuing a kidnapping victim, by using data stored on a suspect’s phone.

"I don’t think I’ve found that one yet," Comey said.

Critics of Comey’s position have also pointed out that the government can still obtain huge amounts of information stored on tech companies’ own servers. And geolocation data, which could be used to help track a kidnapping victim or a fleeing criminal, can easily be obtained from cellphone companies under the current law.

Still, Comey insisted that changes in the law should come now to prevent those kinds of "edge cases" from ever occurring. Comey offered no timeline for getting a new bill through Congress but said he wants to start talking to lawmakers now. Prior to the Snowden revelations, a push was underway to update the existing law, but those efforts collapsed following the leaks, Comey said.

The FBI chief was also pressed to clarify remarks in a recent interview with CBS’s 60 Minutes in which he said that the FBI doesn’t monitor the communications of Americans without warrants. Comey said he’d misspoken, because, in fact, FBI analysts are allowed to read the emails or listen to the phone calls of Americans if they were intercepted as part of surveillance aimed at foreign persons. The FBI has concluded that if foreign surveillance was legal in the first place, then any information that was collected incidentally is also covered by the law, and therefore fair game for the bureau.