The director of the US Federal Bureau of Investigation has called on technology companies to build surveillance capabilities into their products and systems to allow law enforcement agencies to access the evidence needed to prosecute criminals.
In a speech delivered in Washington last night, FBI director James B Comey argued that US law had failed to keep pace with the increasing adoption of encryption technologies.
Comey blamed encryption and the growing options available for online communications for leaving law enforcement "in the dark" and creating a "significant public safety problem".
“Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority,” 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.”
He listed four examples of cases in which access to a mobile phone or laptop had proved vital to an investigation, and another where such access enabled the exonerated of someone who had been wrongly accused.
Comey argued that such outcomes would become less frequent - or at least more difficult to achieve - if use of encryption and communications options grew without being addressed by the law.
He criticised companies such as Google and Apple - who have taken steps to prevent law enforcement access to user data by locking themselves out of user devices - for creating a “black hole for law enforcement".
“Both companies are run by good people, responding to what they perceive is a market demand. But the place they are leading us is one we shouldn’t go to without careful thought and debate as a country," he said.
"Encryption is nothing new. But the challenge to law enforcement and national security officials is markedly worse, with recent default encryption settings and encrypted devices and networks - all designed to increase security and privacy."
He said while the FBI understood the private sector's desire to remain competitive, the agency needed to ensure companies understood "what we need, why we need it, and how they can help, while still protecting privacy rights and providing network security and innovation".
"We need our private sector partners to take a step back, to pause, and to consider changing course."
The relevant 20-year old US law requires telcos to build interception capabilities into their networks for court-ordered surveillance. It does not, however, cover new means of communications, meaning companies are not required to provide lawful intercept capabilities for such services.
"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.
"We aren’t seeking to expand our authority to intercept communications. We are struggling to keep up with changing technology and to maintain our ability to actually collect the communications we are authorised to intercept."
The Australian Government recently introduced new legislation boosting the powers of Australia's spy agency ASIO, which expanded the definition of the term 'computer' to include networks of computers - which legal experts argued (to no avail) encapsulates the entire internet.
Comey said the FBI was not seeking a back-door approach to private sector systems and products, rather was after "front door" entry guided by "clarity and transparency".
"We are completely comfortable with court orders and legal process—front doors that provide the evidence and information we need to investigate crime and prevent terrorist attacks."
A metadata myth?
The FBI boss attempted to dispel the argument that enough information on a citizen could be attained through metadata records, claiming the data was "incomplete" and difficult to access in timely circumstances.
Comey's comments are in stark contrast to former CIA and NSA director Michael Hayden, who in May this year said "we kill people based on metadata".
NSA general counsel Stewart Baker also previously said “metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content".
"Metadata doesn’t provide the content of any communication," Comey argued last night.
"It’s incomplete information, and even this is difficult to access when time is of the essence. I wish we had time in our work, especially when lives are on the line. We usually don’t."
The Australian Government is currently planning to introduce laws requiring telecommunications companies and internet service providers to retain user data for up to two years in order to aid law enforcement.
The proposal has met with strong criticism from the country's telco industry which claims the scheme would impose huge costs on the companies involved, which would need to be passed on to consumers, as well as infringe on user privacy.