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FBI's Comey: Warrant-Proof Spaces Are Problematic

FBI director James Comey says the agency’s push to get more help from Apple in the San Bernardino investigation is about that case, period. But he says a conversation is necessary about the broader issue of warrant-proof spaces.

That came in a House Judiciary Committee hearing in which members of the committee had some tough questions for the director and the agency's effort to force Apple to help them access info on an alleged San Bernardino shooters phone.

Both sides of the aisle had tough questions about the issue, both the case-specific details and the broader issue of encryption and privacy.

Comey said balancing the privacy and public safety was the hardest issue he had faced in government and that ultimately Congress would likely need to address the broader issue.

But he defended the FBI's use of a legal maneuver, the All Writs Act dating from 1789, to force Apple's compliance with a court order that it create what Apple called a back door to its encryption and Comey described somewhat differently.

He said the FBI was not looking for Apple to create a back door. He suggested the front door would do, but that Apple had to call off the drooling guard dog so the FBI could try to pick the lock.

Rep. John Conyers (D-Mich.), ranking member of the committee, and Rep. Bob Goodlatte (R-Va.), chairman, both expressed concerns that once Apple had complied, the FBI would not stop there, and that other phones' encrypted data would be compromised.

Comey conceded that the case could provide precedent for asking for similar access to other encrypted phones the FBI possesses as part of other investigations but that would still require going to a court with that fact set.

He also said that in the case of San Bernardino, Apple had been cooperative up to a point, beyond which it did not feel it could do what the FBI wanted. At that point, he said, the agency used all legal means at its disposal to get the information, and that if he had not done that he should be fired.

Comey made the point repeatedly that for him, the San Bernardino case was about that particular investigation, but that there was a larger conversation to be had about encryption.

He said he saw a time when all info was encrypted, including that of pedophiles and terrorists, and that if the country wanted warrant-proof spaces, there needed to be a conversation about the implications of that. While a safe can be blown if the agency can't open it, this is different.

"The FBI is not an alien force imposed upon America by Mars," he said. His job was to tell people there was a problem with encryption when it came to investigating crimes. "If there are warrant proof spaces," he said, "there needs to be broader conversation about  what the consequences of that are."

Rep. Conyers felt the FBI was doing an end run on encryption by going the court route and said he is hoping law enforcement was not trying to leverage a tragedy to achieve a policy change.

Comey again said efforts to unlock the San Bernardino phone were about that case and that investigation. Rep. Darrell Issa (R-Calif.), who has a security background in the private sector, arguably hammered Comey hardest. He suggested the FBI might not have done enough to access the phone information without forcing a third party, Apple, to do the work for it. Comey said that if they had been able to do it themselves, he wouldn't be there, but added that if Issa had any suggestions he hoped his FBI people were listening.

Rep. Steve Chabot (R-Ohio) said that he thought Congress would eventually have to resolve the issue of the limits of privacy in a tech-driven world.