FBI Director James Comey has gone public with the message that he intends to ask Congress next year to unshackle the Bureau in its attempt to unlock the puzzle of encrypted phones. The remarks were recently made before the American Bar Association in San Francisco. Later, Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC), took to the stage to offer a counterpoint view in the ongoing debate surrounding encryption and personal privacy.
The problem of encryption, which he calls “going dark,” is affecting his agents’ work, making it more difficult, according to Comey, for agents to do their job of protecting the public. He will gather evidence to support this conclusion, and will present it to Congress after this tumultuous election. His words portray a man truly tormented by this conundrum, because, admittedly, the FBI benefits from the security offered by encryption in their daily communication. He reminded the assemblage that, “We have never had absolute privacy.”
To drive home this point, he revealed a rather poignant vignette about the FBI’s surveillance of Dr. Martin Luther King in the 1960s to ram home that surveillance, at least getting the authorization to conduct surveillance of a target, has been tightened strictly and continuously over the years. In the case of Dr. King, the request to wiretap his house was so broad and flimsy and absent of particulars that it would be laughed at today.
Comey keeps a copy of that surveillance request on his desk, he claims, to remind him how sacred the right to privacy is while acknowledging the great lengths the justice system must go to in order to protect those privacy rights. But then he tipped his hand about his real agenda by saying,
“I love encryption.”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.”
He alluded to the fact that of about 10,000 phones the FBI was called upon to “open”, some 650 were impossible to unlock. This is what he fears, and calls “going dark”. Of those phones, he said, “They’re a brick to us. Those are cases unmade, evidence unfound.” Therein lies the conundrum – the case where the security provided by encryption ensures privacy, at the price of justice denied for some.
But Comey refrained from demanding that the FBI have its way, saying instead that his job today was to just lay out the problem so it can be addressed and solved – not litigated, as was the case with the San Bernardino shooters phone. That case led to a lengthy and contentious litigation. Of that he said,
“Litigation is not the place to solve the problem. 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.”
A counter-argument for privacy
And a public discussion is what is needed here to reach a nuanced solution – something the following speaker, Rothenberg acknowledged.
In Rothenberg’s view, the fact that several hundred phones could not be cracked paled in comparison to the millions of phones that were lost or stolen each year in the US, which would have had even more dire consequences if they could have been easily decrypted,
“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, according to Rothenberg. This added to the conundrum due to public pressure. So, in his estimation, since it is Congress’ job to reflect the will of the people, the people have already spoken. So has law enforcement. Again, it was at their urging that security has been ratcheted up.
Fortunately, the wheels of government move slowly and measurably – perhaps too slowly for some. But this thorny conundrum is not easily solved. And it is doubtful that a change in the occupant of the White House will alter anything – at least not right away. But the election might alter the balance of power in Congress, and that bears watching.