Washington, DC- Federal Bureau of Investigation Director James Comey gave a speech at Washington’s Brookings Institution, warning against the consequences of smartphone encryption and discussing the disconnect between technology advancements and law enforcement abilities.
Comey titled the disconnect “Going Dark”, saying that although law enforcement has the authority to access electronic communications through court orders, certain advancements have obstructed agencies from access. With new technology “comes a desire to protect our privacy and our data—you want to share your lives with the people you choose. I sure do,” said Comey. “But the FBI has a sworn duty to keep every American safe from crime and terrorism, and technology has become the tool of choice for some very dangerous people.”
Comey was mainly referring to advancements including Apple’s iOS 8 operating system that allows users to lock their phones with a passcode that neither Apple nor the federal government can bypass. Google has also recently announced similar encryption plans on Android devices. “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,” said Comey.
“In the past, conducting electronic surveillance was more straightforward,” said Comey. “We identified a target phone being used by a bad guy, with a single carrier. We obtained a court order for a wiretap, and, under the supervision of a judge, we collected the evidence we needed for prosecution.”
Today, said Comey, there are many more networks, apps and providers. “We have laptops, smartphones, and tablets. We take them to work and to school, from the soccer field to Starbucks, over many networks, using any number of apps. And so do those conspiring to harm us.”
Comey said the public’s presumption that the FBI has “phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch” is not true, and despite following the rule of law it remains difficult to access important evidence.
Comey went on to cite examples of when accessing data such as text messages has helped law enforcement solve crimes. He noted a case in Louisiana when a sexual predator murdered a 12-year-old boy, and using the data from both phones provided enough evidence to convict the man. He also discussed a case in California where text messages revealed that a 2-year-old’s murder had been covered up by the child’s parents.
Comey said that such access can also vindicate innocent people, describing a case of several teens accused of rape being exonerated because of cell phone video evidence.
“Perhaps it’s time to suggest that the post-Snowden pendulum has swung too far in one direction—in a direction of fear and mistrust. It is time to have open and honest debates about liberty and security,” said Comey. “Some have suggested there is a conflict between liberty and security. I disagree. At our best, we in law enforcement, national security, and public safety are looking for security that enhances liberty. When a city posts police officers at a dangerous playground, security has promoted liberty—the freedom to let a child play without fear.”
Comey said that solutions to the “Going Dark” issue involves cooperation from companies such as Apple and Google “so that criminals around the world cannot seek safe haven for lawless conduct. We need to find common ground.”
“We understand the private sector’s need to remain competitive in the global marketplace. And it isn’t our intent to stifle innovation or undermine U.S. companies. But we have to find a way to help these companies understand 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.”
“We also need a regulatory or legislative fix to create a level playing field,” Comey said, “so that all communication service providers are held to the same standard and so that those of us in law enforcement, national security, and public safety can continue to do the job you have entrusted us to do, in the way you would want us to.”