A new top cyber official at the FBI could be a moderating voice in the protracted standoff between the agency and tech companies over how to address the spread of encrypted devices.
Amy Hess, a longtime bureau official, was appointed on Tuesday to head the FBI’s Criminal, Cyber, Response, and Services Branch. She is known for playing a prominent role in one of the most high profile flash points in the encryption debate so far: She challenged her colleagues during the FBI’s fight with Apple over access to the San Bernardino shooter’s iPhone in 2016. Hess was worried about whether investigators were trying hard enough to find a way to open the encrypted device before seeking a court order forcing Apple to do so — and she brought her concerns to the FBI’s watchdog.
The debate in Washington still rages on whether the government should have a built-in way to access devices with encryption so strong even the company doesn’t have the key. But while Hess, like other bureau officials, has argued that the spread of strong encryption can hinder investigations, her reputation for being willing to pursue other investigative tools seems to set her apart at a time when other law enforcement officials have suggested that legislation forcing companies to create a so-called “back door” into encryption may be the only solution.
“The FBI has been stuck on ‘going dark,’ even while one, we have an increasing cyber crime issue, and two, increasing amounts of digital evidence that law enforcement isn’t using well,” said Susan Landau, a cybersecurity and national security professor at Tufts University, told me in an email. “Hess is smart; I would hope that she would aim at much better use of digital evidence.”
What we know about Hess’s role in the Apple case comes from an inspector general report released earlier this year. Hess was serving as the bureau’s executive assistant director for science and technology when the FBI tried to break into the iPhone of Syed Rizwan Farook, one of the two terrorists who killed 14 people in San Bernardino, Calif.
During the investigation, Hess worried she wasn’t getting a “straight answer” about whether the FBI’s technical experts had a way of accessing the device, according to the report. She also feared the chief of the FBI’s Cryptographic and Electronic Analysis Unit “knew of a solution but remained silent in order to pursue his own agenda of obtaining a favorable court ruling against Apple,” the report said. The San Bernardino case was the “poster child” for the “going dark challenge,” she told the inspector general. After she pressed her concerns with her colleagues, the FBI found a contractor that helped investigators crack the phone without the company building a new way in, ending the legal battle with Apple.