AMITIAE - Saturday 9 April 2016

Cassandra: FBI Director James Comey on Privacy

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By Graham K. Rogers


Earlier in the week, James Comey, Director of the Federal Bureau of Investigation addressed the Center for the Study of American Democracy Biennial Conference, at Kenyon College in Gambier, Ohio.

As the keynote speaker, he used his time to address the Conference about privacy and the desire for privacy: "I get that, I really do. I don't want anybody looking at my stuff either." A point that powerful people often use for themselves, but gloss over when it comes to others.

He outlined many of the other perspectives in play, other issues - examples of crimes and that this has changed the way that we have conversations about it, noting that in many cases where there are secrets law enforcement could go to a judge and get a warrant to open the box.

I really have no problems with this. The judge must be presented with a reasonable case of the expectations and in many cases these arguments are accepted. This may of course be because there is no one arguing the other side; and in the case of the FISA courts, warrants were automatic in almost every case and could be applied for retrospectively: after the digital break-in had occurred. This is where enforcement becomes a little fuzzy.

Comey outlines the power of the courts to make those in the US comply with legal orders, veering dangerously close ("our memories") to thought crime. His problem comes from the digital world as "Today those of us in law enforcement are confronted with boxes that can't be opened."

He notes that "encryption brings us to a place [where] all of our papers and effects can be entirely private" This demands a new conversation, and he rolls out the usual suspects: "Child predators love it, organized criminals love it, terrorists love it, and it's part of their tradecraft."

It is also part of the trade of law enforcement to discover such miscreants and in the case of the children, the FBI is doing quite well recently with its Project Safe Childhood. They are to be congratulated on the results. Some of the evidence was gathered from digital devices.

The problem for law enforcement is that these days, "We live our lives on these mobile devices, and when those are off-limits despite court orders, our world changes." Comey adds that "it is incredibly difficult to have a good conversation about the impact of encryption on law enforcement and national security."

He notes the argument put forward by technology companies concerning the need for encryption, but finds them "incredibly depressing". To him, the paramount need is for safety: to be fair, that is his job. He thinks those in technology (and others holding similar views), don't "understand the potential costs, or that they weren't being fair-minded about it." Or perhaps it is him who does not understand the potential costs were encryption to be weakened.

He outlined the problem with the iPhone 5c that was the subject of recent news, but in his address he glossed over why there were problems with opening the device. There is no mention, for example, of the attempt by the owner to access data, under the FBI's guidance, which probably made the access impossible except by the means they wanted Apple to create. Nor does he outline the reason for the use of obscure and outdated law; nor the point that this was finally rejected by the judge.

His argument on the processes and legal arguments similarly misses some key points: going down the same slippery slope he warns against in his speech. But his comment, "privacy should be absolute is just not a fair-minded place to be in my estimation" indicates that he may never be able to balance the needs of the public - the very thing he is charged with protecting.

He does accept (and is right) that there is a need for discussion, outside the courts: "It is a good thing that the litigation is over, but it will be a bad thing if the conversation ended. . ." but weakens his argument by adding, "At some point it's going to figure in a major tragedy in this country."

He may have not noticed that with the number of shootings and other domestic terrorist attacks, major tragedies are occurring almost on a daily basis that the FBI has not been able to stop. And despite the technology accessible to law enforcement agencies, the attacks in Paris were not stopped (though there was significant chatter) even with the use of open, unencrypted communications.

He closes by saying that the job of the FBI is to investigate, while the job of the technology companies is to innovate and come up with the next great thing and that how the question of balancing these two is up to America.

The lengthy address contains a lot that is interesting and demands a close read. These are sterling words, but do they meet the actions or the needs: of law enforcement, of tech companies, or the privacy needs of all users?

See also:

The full text of James Comey's address to the Center for the Study of American Democracy Biennial Conference, Kenyon College, Ohio

Graham K. Rogers teaches at the Faculty of Engineering, Mahidol University in Thailand. He wrote in the Bangkok Post, Database supplement on IT subjects. For the last seven years of Database he wrote a column on Apple and Macs. He is now continuing that in the Bangkok Post supplement, Life.



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