from the not-how-it-works dept
Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem. We call it “Going Dark,” and what it means is this: 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. 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.Of course, many of us look at that encryption itself as a public safety issue on the other side. Greater encryption allows people to communicate safely, securely and privately -- which is an important public safety consideration. The simple fact is that crimes have been committed throughout human history without the ability of law enforcement to eavesdrop on people. It's merely an accident of history that so much communication recently has had backdoors and holes by which eavesdropping was even possible. Closing those doors doesn't mean law enforcement can't solve crimes, and it's silly to mandate backdoors when it's not necessary and can create more problems.
We face two overlapping challenges. The first concerns real-time court-ordered interception of what we call “data in motion,” such as phone calls, e-mail, and live chat sessions. The second challenge concerns court-ordered access to data stored on our devices, such as e-mail, text messages, photos, and videos—or what we call “data at rest.” And both real-time communication and stored data are increasingly encrypted.
Comey seems particularly annoyed that the tech industry is locking stuff up in response to the Snowden revelations, because he argues, that's blocking all sorts of other stuff he'd like to have access to:
In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications. That is not true. And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals.Again, there's an interesting sense of entitlement there. There's lots of information law enforcement would like to have, and even may legally have the right to have, but which they cannot have. And that's been true throughout history, and law enforcement has survived and crimes have been stopped and criminals caught and prosecuted. What Comey is advocating here is to make everyone less safe just in case law enforcement wants it. That's a problem.
Some believe that the FBI has these 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. It may be true in the movies or on TV. It is simply not the case in real life.
It frustrates me, because I want people to understand that law enforcement needs to be able to access communications and information to bring people to justice. We do so pursuant to the rule of law, with clear guidance and strict oversight. But even with lawful authority, we may not be able to access the evidence and the information we need.
Bizarrely, Comey is quite upset that companies are now marketing the fact that they keep you secure.
Encryption isn’t just a technical feature; it’s a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at all levels. Sophisticated criminals will come to count on these means of evading detection. It’s the equivalent of a closet that can’t be opened. A safe that can’t be cracked. And my question is, at what cost?The cost of privacy and trust. Which are, you know, kind of important too...
And then he goes back to his simply wrong declaration that this is about making people "above the law." But that's not true. There is no legal requirement that this information be available. It's not above the law at all. Being above the law means ignoring the law and getting away with it. But, to Comey, being above the law is apparently doing stuff that makes the FBI's job marginally more difficult.
I hope you know that I’m a huge believer in the rule of law. But I also believe that no one in this country should be above or beyond the law. There should be no law-free zone in this country. I like and believe very much that we need to follow the letter of the law to examine the contents of someone’s closet or someone’s cell phone. But the notion that the marketplace could create something that would prevent that closet from ever being opened, even with a properly obtained court order, makes no sense to me.And then there's this: He's not a scaremonger, but you should be afraid:
I think it’s time to ask: Where are we, as a society? Are we no longer a country governed by the rule of law, where no one is above or beyond that law? Are we so mistrustful of government—and of law enforcement—that we are willing to let bad guys walk away...willing to leave victims in search of justice?
I’ve never been someone who is a scaremonger. But I’m in a dangerous business.And, of course, he wants Congress to step in and fix things for him, making everyone less safe:
We also need a regulatory or legislative fix to create a level playing field, 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.A "level field"? Really? The field has been tilted strongly towards the FBI and NSA for well over a decade. It's only now, with further encryption, that it's been leveling out...