FBI Director Talks Privacy Rights in Silicon Valley

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By Jessica DaSilva

Aug. 5 — Legal resistance from lawyers is necessary in the FBI's mission to protect America because it safeguards the people's Constitutional rights in the field of emerging technology, according to FBI Director James Comey.

Comey emphasized the need for balance between public safety and individual privacy Aug. 5 at the American Bar Association's Annual Meeting in San Francisco. To explain his position, Comey referenced the FBI's struggle with Apple over the agency's request for the company to hack into one of the San Bernardino, Calif., shooters' iPhones (98 CrL 486, 2/24/16; 98 CrL 623, 3/30/16).

While Comey said he believed that increased privacy is ultimately good for people, the security of new technology has had unintended side effects.

In the first 10 months of this fiscal year, Comey said the FBI received 5,000 devices from state and local law enforcement agencies with subpoenas asking for help gaining access to them in order to try active criminal cases. The FBI could not open 650 of them, Comey said.

“This is a shadow that is falling across our work,” Comey said.

Values ‘Colliding.'

No American has ever enjoyed “absolute privacy,” Comey said. Even protected relationships with spouses, lawyers, and clergy members can be pierced under certain circumstances, he explained.

The bargain in the U.S. is that “people enjoy privacy unless—with appropriate authority—the government needs to look at it,” Comey said.

Most people assume based on television that the FBI can hack into any device, but that's not the case, he said. Even if the FBI could hack into any device, he explained the FBI lacks the funding to scale that technology in time to keep up with new, emerging encryption methods.

He stated that he believed there were “no devils” in the situation and that both technology companies and government agencies value public safety and individual privacy. But the two camps weigh those values differently, he said.

“I love encryption,” he said. “It protects people from theft and stalking. I also love public safety. I see those two values, both of which I share, colliding into each other.”

America is in need of a broader conversation about how to balance those competing interests, he said. That's why the FBI is collecting data from states' attorney's offices, he explained: To determine the impact of encryption on law enforcement agencies.

However, he said having a conversation with the American public can be difficult because the issues are multifaceted and nuanced, which can try people's attention spans.

“The challenge of anything that doesn’t fit in a tweet we don’t want to discuss,” Comey said. “In a tweet world, how do we deal with this?”

Clinton's E-mails

Comey also touched on his decision to publicly recommend no criminal charges against Democratic presidential nominee Hillary Rodham Clinton for storing classified e-mails on a private server when she served as secretary of state.

Even though it was an unprecedented move for the FBI director to publicly announce such a recommendation, Comey said he felt the unusual circumstances warranted an unusual response.

Transparency became important because of the immense public interest, he explained.

“I think this was the way most likely to offer transparency that would reassure the American people that this investigation was done well,” Comey said.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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