Privacy SOS

FBI director: “I really am not a maniac.”

J. Edgar Hoover, the father of the FBI, was no stranger to fear mongering.

Jim Comey, the director of the FBI, wants the world to know that his campaign to defeat strong security tools online, namely encryption, does not make him a maniac.

In a short blog post for the generally pro-government legal affairs website Lawfare, Comey warns that while privacy is important in a democracy,  communications should never exist outside the reach of the FBI's sticky fingers.

The FBI director lays out what he sees as the major benefits and costs of encryption. On the plus side, he writes:

Universal strong encryption will protect all of us—our innovation, our private thoughts, and so many other things of value—from thieves of all kinds. We will all have lock-boxes in our lives that only we can open and in which we can store all that is valuable to us.

On the other hand, Comey warns that if the public can use strong security tools to protect our communications, we might hurt ourselves. Too much dignity and privacy is bad, or something.

Public safety in the United States has relied for a couple centuries on the ability of the government, with predication, to obtain permission from a court to access the "papers and effects" and communications of Americans. The Fourth Amendment reflects a trade-off inherent in ordered liberty: To protect the public, the government sometimes needs to be able to see an individual's stuff, but only under appropriate circumstances and with appropriate oversight.

There's a lot that's wrong with his argument on its face. To begin with, Americans have always been able to have secret conversations out of the reach of government spies, and the republic didn't fall just because a couple of dudes talked in the woods. Those the FBI director calls "bad guys" are not, in fact, going to get us all if the FBI can't read our most private thoughts without technical limitations.

But another major story in this week's news completely undercuts even the basic facts Comey lays out to fear monger against encryption. The FBI doesn't need to get backdoors into Google's encrypted systems to read a terrorist's emails. For that, it can turn to its own internal hackers or hire out hacker mercenaries like the people at the Italian company Hacking Team. Hacking Team's emails were, well, hacked last week, and now their stuff is all over the interwebs. Among those emails is proof, finally, that the FBI has paid these professional security busters to do exactly what Comey says the Bureau can't do: defeat strong encryption.

The reality is that encryption isn't an obstacle to the FBI if agents want to spy on a specific target they suspect of a serious crime. They can use their totally unregulated powers to hack into the target's machine, and get around that pesky encryption by mirroring a computer and watching a suspect in real time. But while encryption doesn't defeat an advanced adversary like the FBI if it wants to target a specific person for surveillance, it does defeat dragnet spying efforts. Perhaps that's what has the FBI director so upset.

The "going dark" debate just got a little more real.

© 2021 ACLU of Massachusetts.