From: Lawfare
By Cody Poplin
You can find the text of FBI Directory James Comey’s remarks as delivered today at Brookings here or below.
They begin:
Good morning. It’s an honor to be here.
I have been on the job as FBI Director for one year and one month. I like to express my tenure in terms of months, and I joke that I have eight years and 11 months to go, as if I’m incarcerated. But the truth is, I love this job, and I wake up every day excited to be part of the FBI.
Over the past year, I have confirmed what I long believed—that the FBI is filled with amazing people, doing an amazing array of things around the world, and doing them well. I have also confirmed what I have long known: that a commitment to the rule of law and civil liberties is at the core of the FBI. It is the organization’s spine.
But we confront serious threats—threats that are changing every day. So I want to make sure I have every lawful tool available to keep you safe from those threats.
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Correcting Misconceptions
Some argue that we will still have access to metadata, which includes telephone records and location information from telecommunications carriers. That is true. But metadata doesn’t provide the content of any communication. It’s incomplete information, and even this is difficult to access when time is of the essence. I wish we had time in our work, especially when lives are on the line. We usually don’t.
There is a misconception that building a lawful intercept solution into a system requires a so-called “back door,” one that foreign adversaries and hackers may try to exploit.
But that isn’t true. We aren’t seeking a back-door approach. We want to use the front door, with clarity and transparency, and with clear guidance provided by law. We are completely comfortable with court orders and legal process—front doors that provide the evidence and information we need to investigate crime and prevent terrorist attacks.
Cyber adversaries will exploit any vulnerability they find. But it makes more sense to address any security risks by developing intercept solutions during the design phase, rather than resorting to a patchwork solution when law enforcement comes knocking after the fact. And with sophisticated encryption, there might be no solution, leaving the government at a dead end—all in the name of privacy and network security.
Another misperception is that we can somehow guess the password or break into the phone with a so-called “brute force” attack. Even a supercomputer would have difficulty with today’s high-level encryption, and some devices have a setting whereby the encryption key is erased if someone makes too many attempts to break the password, meaning no one can access that data.
Finally, a reasonable person might also ask, “Can’t you just compel the owner of the phone to produce the password?” Likely, no. And even if we could compel them as a legal matter, if we had a child predator in custody, and he could choose to sit quietly through a 30-day contempt sentence for refusing to comply with a court order to produce his password, or he could risk a 30-year sentence for production and distribution of child pornography, which do you think he would choose?
Case Examples
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