“The law has not kept pace with technology, and this disconnect has created a significant public safety problem we have long described as ‘Going Dark,’” said FBI Director James Comey in remarks at a Brookings event today. He explained that “We have the legal authority to intercept and access communications and information pursuant to a court order, but we often lack the technical ability to do that.”
In the event, hosted by Governance Studies at Brookings and moderated by Senior Fellow Benjamin Wittes, co-founder and editor-in-chief of Lawfare, Director Comey pointed out that the current law governing interception of communications—the Communications Assistance for Law Enforcement Act (CELEA)—was enacted 20 years ago, “a lifetime in the Internet age.” Most companies, he said, “are not required by statute to provide lawful intercept capabilities to law enforcement.” But the issue, he added, is not that companies should be required to build such capabilities, but that the FBI and law enforcement “are struggling to keep up with changing technology and to maintain our ability to actually collect the communications we are authorized to collect.”
“And if the challenges of real-time data interception threaten to leave us in the dark,” he said, “encryption threatens to lead all to a very, very dark place.” Watch:
Director Comey called default encryption settings, devices, and networks—including Apple’s and Google’s new operating systems—a challenge to law enforcement and national security officials. He said:
Encryption isn’t just a technical feature; it’s a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at all levels. Sophisticated criminals will come to count on these means of evading detection. It’s the equivalent of a closet that can’t be opened. A safe deposit box that can’t be opened. A safe that can’t ever be cracked. And my question is, at what cost?
Director Comey emphasized that citizens should be skeptical of government power, but that “it’s time that the post-Snowden pendulum be seen as having swung too far in one direction—in a direction of fear and mistrust.”
Recognizing the private sector’s need to remain globally competitive and innovative, Director Comey called for “assistance and cooperation from companies to comply with lawful court orders so that criminals around the world cannot seek safe haven.” He also said that we need “a regulatory and legislative fix here to create a level playing field” to hold all communication service providers “to the same standard.”