Earlier today, FBI Director James Comey implied that a broad coalition of technology companies, trade associations, civil society groups, and security experts were either uninformed or were not “fair-minded” in a letter they sent to the President yesterday urging him to reject any legislative proposals that would undermine the adoption of strong encryption by US companies. The letter was signed by dozens of organizations and companies in the latest part of the debate over whether the government should be given built-in access to encrypted data (see, for example, here, here, here, and here for previous iterations).
The comments were made at the Third Annual Cybersecurity Law Institute held at Georgetown University Law Center. The transcript of his encryption-related discussion is below (emphasis added).
Increasingly, communications at rest sitting on a device or in motion are encrypted. The device is encrypted or the communication is encrypted and therefore unavailable to us even with a court order. So I make a showing of probable cause to a judge in a criminal case or in an intelligence case to the Foreign Intelligence Surveillance Court judge that the content of a particular defense or a particular communication stream should be collected to our statutory authority, and the judge approves, increasingly we are finding ourselves unable to read what we find or we’re unable to open a device. And that is a serious concern.
I am actually — I think encryption is a good thing. I think there are tremendous societal benefits to encryption. That’s one of the reasons the FBI tells people not only lock your cars, but you should encrypt things that are important to you to make it harder for thieves to take them.
But we have a collision going on in this country that’s getting closer and closer to an actual head-on, which is our important interest in privacy — which I am passionate about — and our important interest in public safety. The logic of universal encryption is inexorable that our authority under the Fourth Amendment — an amendment that I think is critical to ordered liberty — with the right predication and the right oversight to obtain information is going to become increasingly irrelevant. As all of our lives become digital, the logic of encryption is that all of our lives will be covered by strong encryption, therefore all of our lives — I know there are no criminals here, but including the lives of criminals and terrorists and spies — will be in a place that is utterly unavailable to court ordered process.
And that, I think, to a democracy should be very, very concerning. I think we need to have a conversation about it. Again, how do we strike the right balance? Privacy matters tremendously. Public safety, I think, matters tremendously to everybody. I think fair-minded people have to recognize that there are tremendous benefits to a society from encryption. There are tremendous costs to a society from universal strong encryption. And how do we think about that?
A group of tech companies and some prominent folks wrote a letter to the President yesterday that I frankly found depressing. Because their letter contains no acknowledgment that there are societal costs to universal encryption. Look, I recognize the challenges facing our tech companies. Competitive challenges, regulatory challenges overseas, all kinds of challenges. I recognize the benefits of encryption, but I think fair-minded people also have to recognize the costs associated with that. And I read this letter and I think, “Either these folks don’t see what I see or they’re not fair-minded.” And either one of those things is depressing to me. So I’ve just got to continue to have the conversation.
I don’t know the answer, but I don’t think a democracy should drift to a place where suddenly law enforcement people say, “Well, actually we — the Fourth Amendment is an awesome thing, but we actually can’t access any information.”
We’ve got to have a conversation long before the logic of strong encryption takes us to that place. And smart people, reasonable people will disagree mightily. Technical people will say it’s too hard. My reaction to that is: Really? Too hard? Too hard for the people we have in this country to figure something out? I’m not that pessimistic. I think we ought to have a conversation.