FBI director James B. Comey has said that national threats require a “national conversation”, particularly as it is struggling to keep up with developments in technology and the ability to surveil and collect data.
In a speech given at the Brookings Institution in Washington DC, the FBI director marked his first 13 months in the job saying that there are a lot of misconceptions in the public eye about what the Government collects and the capabilities it has for collecting information.
He said: “Technology has forever changed the world we live in. We’re online, in one way or another, all day long. Our phones and computers have become reflections of our personalities, our interests, and our identities. They hold much that is important to us.
“With that comes a desire to protect our privacy and our data—you want to share your lives with the people you choose. I sure do. But the FBI has a sworn duty to keep every American safe from crime and terrorism, and technology has become the tool of choice for some very dangerous people.”
He claimed that the law has not kept pace with technology, and this disconnect has created a significant public safety problem, mainly that those charged with protecting people aren’t always able to access the evidence they 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,” he said. He said that with countless providers, networks and means of communicating makes it tough for the FBI to keep up, even if someone switches between apps.
He denied that the Government is sweeping up all of communications, and that the FBI has “these phenomenal capabilities to access any information at any time” that may be true in the movies or on TV, but is simply not the case in real life.
He said: “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.
“Current law governing the interception of communications requires telecommunication carriers and broadband providers to build interception capabilities into their networks for court-ordered surveillance. But that law, the Communications Assistance for Law Enforcement Act, or CALEA, was enacted 20 years ago—a lifetime in the internet age. And it doesn’t cover new means of communication. Thousands of companies provide some form of communication service, and most are not required by statute to provide lawful intercept capabilities to law enforcement.”
He claimed that some companies fail to comply with a court order, while others cannot comply because they have not developed interception capabilities or have to build in interception capabilities, and that takes time and money.
“We aren’t seeking to expand our authority to intercept communications,” he said. “We are struggling to keep up with changing technology and to maintain our ability to actually collect the communications we are authorised to intercept.
And if the challenges of real-time interception threaten to leave us in the dark, encryption threatens to lead all of us to a very dark place.”
He also denied that the FBI is seeking to add backdoors into technologies, saying it “want[s] to use the front door, with clarity and transparency, and with clear
guidance provided by law”.
He said: “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.
“With sophisticated encryption, there might be no solution, leaving the Government at a dead end—all in the name of privacy and network security.”
He concluded by saying that there is a failure to understand “why we in law enforcement do what we do and how we do it”, and it was time to ask “where are we, as a society?”
“The way I see it, the means by which we conduct surveillance through telecommunication carriers and those internet service providers who have developed lawful intercept solutions is an example of Government operating in the way the founders intended—that is, the executive, the legislative, and the judicial branches proposing, enacting, executing, and overseeing legislation, pursuant to the rule of law,” he said.
He called on assistance and cooperation from companies to comply with lawful court orders, so that criminals around the world cannot seek safe haven for lawless conduct, and 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.
