SAN FRANCISCO—FBI Director James Comey has some phones—650 of them, to be exact—that he’d really, really like to take a look at.
Right now, the FBI can’t read the data on those phones, because it’s encrypted. For Comey, that’s a problem. In remarks to the American Bar Association on Friday, he made it clear this is an issue he intends to bring up before Congress next year.
While nothing other than the election will get politicians’ attention during the next few months, Comey told the audience that he intends to gather data about how the problem of encryption, which he calls “going dark,” is affecting his agents’ work. Then, he’ll present the findings to Congress.
“I love encryption,” he said. “I love it. It not only protects me personally, it protects the FBI from theft, and stalking, and threatening. It is a great thing for all of us. I also love public safety, and being able to solve terrorism cases and child pornography cases. We can have an informed conversation as a democracy about what to do about it. A democracy should not drift to a place.”
Checks and balances
Comey began the talk with an anecdote about his desk. Right by the spot where there’s usually a small pile of requests for the Foreign Intelligence Surveillance Court, he keeps a much older piece of paperwork related to surveillance. It’s the application for a wiretap, sent to the US Attorney General in the 1960s, asking to wiretap Martin Luther King Jr on the grounds that his movement had a “communist influence.”
“It’s without date limitation, place limitation, and without any kind of oversight,” said Comey. “It’s a single page sent to the Attorney General. And then they were off, bugging and wiretapping King without limitation. I keep it on my desk as a reminder of the dangers of becoming unconstrained, of losing the checks and balances that are at the heart of the framers’ design.”
“It’s a pain in the neck to get permission to wiretap or bug someone in the United States, and that’s a great thing,” he continued. The problem is that even when a search warrant is acquired, they increasingly see devices that ‘are not susceptible to being unlocked, even by the manufacturer.'”
Comey said in the first 10 months of the last fiscal year, FBI examiners received about 10,000 devices from various law enforcement agencies where authorities asked for help to open them. “Above 650, we could not open,” Comey said. “They’re a brick to us. Those are cases unmade, evidence unfound.”
What to do about it? That’s not for the FBI to say, he said. “Our job is to tell you, there is a problem.” He continued:
We have never had absolute privacy in this country. Cars, safe deposit boxes, our apartments, our houses, even the contents of our minds—any one of us, in appropriate circumstances, can be compelled to say what we saw. We have never lived with large swaths of our life off limits, where judicial authority is ineffective. That is something we need to talk about. I don’t think the FBI should tell people what to do. I don’t think tech companies should tell people what to do. The American people need to decide.
As for the iPhone case that brought this issue to national attention, Comey said he’s glad it’s over. “Litigation is not the place to solve the problem,” he said. “The San Bernardino litigation was necessary, because we had to get into that phone, but in my view counterproductive. It was hard to have a complex conversation.”
500 vs. 3,000,000
After Comey left the gathering, the moderator invited Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC), onto the stage to offer a counterpoint.
Rotenberg acknowledged that locked-up phones are a problem. “The number he used today was 650,” Rotenberg said. “In his Fordham speech, it was 500, but OK. Let’s assume there are several hundred phones from criminal investigations they can’t get into—that’s a problem.”
But, Rotenberg added, 3.1 million cell phones were stolen in the US in 2013 with huge amounts of personal information on them. “I will concede Mr. Comey has a problem with his 500 phones, but he should be concerned that consumers have a problem with their 3 million phones that would be subject to misuse [without strong encryption].”
It was the epidemic of stolen cell phones, and criminals’ increasing access to vast amounts of data, that spurred law enforcement to ask phone companies and phone manufacturers for more secure devices, Rotenberg said. Finally, he took issue with Comey’s view that there’s no concept of “absolute privacy” in the US.
“Doctrinally, that’s not true,” he said. “The 5th Amendment [right to avoid testifying against oneself] is a form of absolute protection. [Attorney-client] privilege is a form.”