The FBI is facing an increasing struggle to access readable information
and evidence from digital devices because of default encryption, a
senior FBI official told members of Congress at a hearing Tuesday.
Amy
Hess said that of the cell phones the FBI seized in the last six months
as part of investigations, officials encountered passwords about 30
percent of the time and had "no capability" to access information
"around 13 percent of that time."
"We have seen those numbers
continue to increase, and clearly that presents us with a challenge,"
said Hess, the executive assistant director of the FBI's science and
technology branch.
In her testimony to a subcommittee of the House
Energy and Commerce Committee, Hess defended the Justice Department's
use of a still-unidentified third party to break into the locked iPhone
used by one of the two San Bernardino, California, attackers. But she
said the reliance on an outside entity represented just "one potential
solution" and that there's no one-size-fits-all approach for recovering
evidence off a locked device. She said she did not think that path
should be the sole solution for breaking open phones.
"These
solutions are very case-by-case specific," she said. "They may not work
in all instances. They're very dependent upon the fragility of the
systems, the vulnerabilities we might find," she said, adding that
cooperation between the government, academia and private industry was
needed to come up with more solutions.
Asked about the FBI's
reliance on a third party to get into the phone, and its inability to
access the device on its own, Hess said the work requires "a lot of
highly skilled specialized resources that we may not have immediately
available to us."
"We live in such an advanced age of technology
development. And to keep up with that, we do require the services of
specialized skills that we can only get through private industry," she
said.
Representatives from local law enforcement agencies echoed
Hess's concerns. Thomas Galati, chief of the intelligence bureau at the
New York Police Department, said officials there have been unable to
break open 67 Apple devices for investigations in 44 different violent
crimes - including 10 homicide cases.
Still, despite anxieties
over "going dark," a February report from the Berkman Center for
Internet and Society at Harvard University said the situation was not as
dire as law enforcement had been warning about and that investigators
were not "headed to a future in which our ability to effectively surveil
criminals and bad actors is impossible."
The hearing comes amid
an ongoing dispute between law enforcement and Silicon Valley about how
to balance consumer privacy against the desire by police and federal
agents to recover communications and eavesdrop on suspected terrorists
and criminals. It also comes as the Senate considers a bill that would
effectively prohibit unbreakable encryption and require companies to
help the government access data on a computer or mobile device when a
warrant is issued.
Bruce Sewell, Apple's general counsel who also
testified, touted the importance of encryption particularly in light of
devastating breaches of sensitive government information - including at
the IRS and the Office of Personnel Management.
"The best way that
we, and the technology industry, know how to protect your information
is through the use of strong encryption. Strong encryption is a good
thing, it is a necessary thing. And the government agrees," Sewell
testified.
"Encryption today is the backbone of our cyber-security
infrastructure and provides the very best defense we have against
increasingly hostile attacks," he added.
In response to questions
raised at the hearing, Sewell said that the Chinese government had asked
Apple for its source code within the last two years - and that Apple
declined.
The long-simmering dispute escalated in February after a
judge in California directed Apple to help the FBI break into the phone
used by Syed Farook, who along with his wife killed 14 people in San
Bernardino on December 2 before dying in a shootout with police. The Justice
Department last month said a third party had approached it with a way
into the phone, effectively ending that court case.
Another legal fight over a phone in a separate drug case is still pending in Brooklyn.
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