Technology has transformed our daily lives and replaced analog communication systems with apps and social networks. People feel naturally protective of their personal data and are wary of surveillance from police and intelligence agencies. On October 16th, FBI Director James Comey spoke with Governance Studies’ scholar Ben Wittes about the impact of technology on federal and state law enforcement. Director Comey commented that despite people’s desire for privacy, law enforcement authorities have a duty to keep Americans safe from crime and terrorism. He followed up that the FBI is committed to upholding the rule of law and protecting civil liberties, but evolving technology in the hands of dangerous people is affecting their ability to effectively carry out investigations.
Director Comey described the following barriers that law enforcement faces and necessary updates to antiquated policies:
FBI Director Identifies Challenges to Law Enforcement
- The general public misunderstands what information federal law enforcement collects. Many also mistakenly assume that law enforcement authorities have access to all communications at all times. In fact, they must obtain individual warrants approved by judges to intercept the communications of suspected criminals.
- The proliferation of communication platforms is a huge challenge for law enforcement. Previously, law enforcement authorities could obtain a court order for a wiretap from a single phone carrier. Now, with countless providers, networks, apps, and means of communication, the options for lawful surveillance are limited.
- The public safety problem of “going dark” is of deep concern for the FBI. Law enforcement authorizes are not always able to access the necessary evidence they need to prosecute crime and prevent terrorism, even with lawful authority. This is exacerbated by companies that are encrypting data for digital services in order to meet consumer demand.
Director Comey’s Suggested Policy Changes
- Policymakers need to create a level playing field so that all communication service providers are held to the same standard. An updated law should provide guidance on how to cooperate with law enforcement agents while also protecting their customers’ privacy rights.
- The Communications Assistance to Law Enforcement Act (CALEA) that was enacted 20 years ago should be updated to cover all new means of communication. Companies not currently subject to CALEA should be required to build lawful intercept capabilities into the product they provide for law enforcement. Assistance and cooperation is needed from companies to comply with lawful court orders.
- Law enforcement agencies must upgrade their technical capabilities. Much of the time, law enforcement officials have the legal authority to intercept and access communications and information pursuant to a court order, but often lack the technical ability.
Congress should consider the changes that Director Comey advocates for in the near future. We agree that it is critical that technology firms and police do not become antagonists. It is possible to achieve a balance that protects the privacy of consumers all over the world and allows police to prosecute criminals. US businesses should work together with law enforcement agencies to ensure that US citizens and interests are protected.