THE BROOKINGS INSTITUTION GOING DARK: ARE TECHNOLOGY, PRIVACY, AND PUBLIC SAFETY ON A COLLISION COURSE? Washington, D.C. Thursday, October 16, 2014

Transcription

1 1 THE BROOKINGS INSTITUTION GOING DARK: ARE TECHNOLOGY, PRIVACY, AND PUBLIC SAFETY ON A COLLISION COURSE? Washington, D.C. Thursday, October 16, 2014 PARTICIPANTS: Welcome and Introduction: BENJAMIN WITTES Senior Fellow and Research Director in Public Law, The Brookings Institution Editor in Chief, Lawfare Keynote Speaker: JAMES COMEY Director Federal Bureau of Investigation * * * * *

2 2 P R O C E E D I N G S MR. WITTES: Good morning, everyone. Welcome to Brookings. I m Benjamin Wittes, a senior fellow in Governance Studies here. And I think this event will probably set a Brookings record for the height differential between guest and host. (Laughter) No, I m kidding. The director s actually not that short. (Laughter) So I m actually going to be very, very brief because we have limited time and the more of it that I use, the less of it we can use for, you know, dialogue between you guys and the director. Director Comey s here to talk about encryption and the problems it creates for law enforcement. This is a subject that the number of people here testifies to the amount of interest in the subject all over the place right now, post Snowden, post a lot of debates about surveillance reform. Mr. Comey has a different perspective, which is about the impacts related to federal and state law enforcement. The format today is going to be very simple. He s going to give relatively brief remarks. I m going to ask -- we re going to move to a conversational format. I m going to ask a few questions and then we re going to go to you. And we re going to use as much of the time as possible for questions from the audience. When I do that, we re going to do that in a -- you know, trying to do it in as uninterrupted a form as possible, so please just signal me if you want to get in. And wait for the mic to come around and introduce yourself by name and organizational affiliation. Keep questions very brief and in the form of a question so that we can have as significant a discussion as possible. With that, I will turn it over to the director, who needs no introduction to this audience. Welcome back to Brookings. MR. COMEY: Well, thank you, Ben, and good morning, everybody. It s great to be here at Brookings. I m told, also, that I am going to be a subject of a recorded podcast for Lawfare, which is a blog I read every single day. So that s actually the real

3 3 reason I m here and so excited. What I d like to do is share some thoughts with you. And then, for me, the most important part is going to be our conversation together, so I thank you in advance for asking whatever is on your mind. I ve been on this job now for one year and one month. Sometimes I joke and express my tenure in months remaining as if I m incarcerated or something, but I don t mean that. I have what I believe is the best job in the entire world because I get to come to work at the FBI every day. Over the last year, I ve confirmed what I long believed: that the FBI is a remarkable place, filled with amazing people doing amazing work all over the country and all over the world every day. And I ve also confirmed what I ve long known: that a commitment to the rule of law and civil liberties is at the core of the FBI. I believe it is the organization s spine. But, as you know, we confront serious threats, threats that are changing every single day, and I want to make sure that I have every lawful tool available to make sure that I m addressing those threats. And so I see this as an opportunity to begin a national conversation about something that is affecting, in a serious way, the investigative work we do. I want to talk to you about the impact of emerging technology on law enforcement. And within that context, I think it s very important for me to talk about the work we do at the FBI, what we need to do the work that we ve been entrusted to do. I believe there are a fair number of misconceptions in the public discussion about what we in government collect, especially we at the FBI, and the capabilities we have for collecting information. I think my job is, as best as I can, to try to explain and clarify, where I can, the work of the FBI. But, at the same time, I really want to get a better handle on your thoughts because those of us in law enforcement can t do

4 4 what we need without your trust and your support, and we have no monopoly on wisdom. My goal today is not to tell people what to do. My goal is to urge our fellow citizens to participate in a conversation as a country about where we are, where we want to be, especially with respect to law enforcement authorities. So let me start by talking about the challenge of what we call going dark. Technology has forever changed the world we live in. All of you know this. Every single day we re online, in one way or another, all day long. Many of us are online during the night when we should be sleeping. Our phones and our computers have become reflections of our personalities. They reflect our interests and our identities. They hold much of what is important to us in life. And with that comes a desire to protect privacy and our data. We want to be able to share our lives with the people we choose to share our lives with. I very much feel that way. But the FBI also has a sworn duty to try to keep every American safe from crime and from terrorism, and technology has become a tool of choice for some very dangerous people. And, unfortunately, the law has not kept pace with technology and this disconnect has created the significant public safety problem we have long described as going dark. And what it means is this: those charged with protecting our people aren t always able to access the evidence we 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 a court order, but we often lack the technical ability to do that. We face two overlapping challenges. The first concerns real-time, courtordered interception of what we call data in motion, such as phone calls or s or live text or chat sessions. The second challenge concerns court-ordered access to data stored on our devices, such as or text messages or photos or videos, what we call

5 5 data at rest. And both -- real-time communication, data in motion, and stored data, data at rest -- are increasingly encrypted. So let me start by talking about court-ordered interception and then talk about the challenges posed by the proliferation of different means of communication and encryption. In the past, doing electronic surveillance was straightforward. We identified a target phone used by a bad guy with a single carrier. We got a court order for a wiretap and, under the supervision of a judge, we collected the evidence we needed for prosecution. Today, there are countless providers, countless networks, countless means of communicating. We have laptops, we have smartphones, we have tablets. We take them to work, to school. We take them from the soccer field to the Starbucks, over many different networks, using many different apps. And so do those conspiring to harm us. They use the same devices, the same networks, the same apps to make plans, to target victims, and to cover up what they re doing. And that makes it very tough for us to keep up. If a suspected criminal is in the car and he switches from cellular coverage to WiFi, we may be out of luck. If he switches from one app to another or from a cellular voice service to a voice or messaging app, we may lose him. We may not have the capability to quickly switch lawful surveillance between devices, methods, and networks. The bad guys know this. They re taking advantage of it every day. In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications. That is not true. And, unfortunately, the idea that the government has access to all communications at all times has extended, even more unfairly, to law enforcement that is working to obtain individual warrants approved by judges to intercept the communications of suspected criminals.

6 6 Some believe that law enforcement, and especially the FBI, has these phenomenal capabilities to access any information at any time; that we can get what we want, when we want it, by flipping a switch. That is the product of too much television. It frustrates me because I want people to understand that law enforcement needs to be able to access communications and information in a lawful way to bring people to justice. We do that pursuant to the rule of law with clear guidance and strict oversight. But even with lawful authority, the going dark problem is we may not be able to access the evidence and the information that we need. Current law governing the interception of communications requires that telecommunications carriers and broadband providers build interception capabilities into their networks for court-ordered surveillance. But that law, the Communications Assistance to Law Enforcement Act, or CALEA, was enacted 20 years ago, a lifetime in the Internet age, and it doesn t cover at all 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. What that means is that in order from a judge to monitor a suspect s communication may amount to nothing more than a piece of paper. Some companies fail to comply with the court order. Some companies can t comply because they ve not developed the capabilities. Other providers want to provide assistance, but they have to take the time to build interception capabilities, which takes not just time, but a lot of money. The issue is whether companies not subject currently to CALEA should be required to build lawful intercept capabilities for law enforcement. Now, to be clear, we are not seeking to expand our authority to intercept communications. We 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

7 7 challenges of real-time data interception threaten to leave using the dark, encryption threatens to lead us all to a very, very dark place. Here s what I mean by that. Encryption is nothing new, but the challenge to law enforcement and national security officials is markedly worse with recent default encryption settings and encrypted devices and networks all in the name of increased security and privacy. For example, with Apple s new operating system the information stored on many iphones and other Apple devices will be encrypted by default. Shortly after Apple s announcement, Google announced plans to follow suit with its Android operating system. This means that the companies themselves will not be able to unlock phones, laptops, and tablets to reveal photos or documents or or stored text or recordings in those instruments. Look, both companies are run by good people who care deeply about public safety and national security. I know that. And they re responding to a market demand that they perceive. But the place that this is leading us is one that I suggest we should not go without careful thought and debate as a country. At the outset, the good folks at Apple say something that s reasonable, which is, look, it s not that big a deal because law enforcement can still get the data from the cloud because folks are going to back up their devices to the cloud and the FBI, with lawful authority, can still access the cloud. But here s the problem with that. Uploading to the cloud doesn t include all of the stored data on the bad guy s phone, first, which has the potential to create a black hole in and of itself. But second, if the bad guys don t back up their phones routinely or if they opt out of uploading to the cloud, the data will only be found on the encrypted devices themselves. And it s the people most worried about what s on the device who will be most likely to avoid the cloud and to make sure that law enforcement cannot access incriminating data. Encryption just isn t a technical feature, it s part of a marketing strategy,

8 8 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 to facilitate this conversation is, at what cost? Let me try to correct some misimpressions that I think are connected to this. The first is that folks say, good folks say, look, you re still going to have access to meta data, which includes telephone records and location information stored with the telecommunications carriers. And that is absolutely true, but meta data does not provide the content of any communication. It s incomplete information and even that is difficult to access when time is of the essence. I wish we had time in our work, especially when lives are on the line. We usually don t. There is a misconception that building a lawful intercept solution is all about building a back door, one that foreign adversaries or hackers could exploit. That also is not true. We are not seeking a back door approach. We want to use the front door with clarity and transparency. We want clear guidance provided by law. We are completely comfortable with court orders and legal process, front doors that provide us the evidence and information we need to investigate crime and prevent attacks. Cyber adversaries, there s no doubt, are going to try to exploit any vulnerability they find. But we think it makes more sense to address any security risks by developing intercept solutions at the front end, in the design phase, rather than resorting to patchwork solutions when law enforcement comes knocking after the fact. And with a sophisticated encryption there may be no solution at all, leaving the government at a total dead-end, again, all in the name of privacy and network security. Another misperception that I ve seen is folks sometimes say, but you

9 9 could guess the password or break it with a so-called brute force attack. Here s the truth: Even with a supercomputer, we would have difficulty with today s high-level encryption. And some devices have a setting where the encryption key itself is erased after too many attempts to break the password, meaning no one, no matter how big their computer, can access the data. And sometimes I ve also heard reasonable folks ask this question: Can t you just compel the owner of the device to provide you the password? And the answer is that s a reasonable question, but, unfortunately, no. Even if we could compel them as a legal matter, think about the choice that that bad guy has to make. Imagine a child predator in custody choosing between a 30-day contempt sentence for refusing to comply with the direction from a court to hand over the password or a 30-year sentence for the production and distribution of child pornography. That choice is not hard to predict. So let me talk about some case examples that I hope will illustrate what I m worried about. Think about your life without your smartphone, without Internet access, or without texting and ing or the apps you use every day. I m guessing most of you would feel lost or left behind. I m told that people much, much cooler than I, which is nearly everyone, calls this FOMO, or fear of missing out. With going dark those of us in law enforcement and public safety have a major fear of missing out: missing out on predators who exploit the most vulnerable among us, on violent criminals, on terrorist cells, and a whole lot of other bad people. The more we as a society rely on these devices, the more important they are to law enforcement and public safety officials for reasons that I think make sense to you. We have seen case after case, from homicides and car crashes to drug trafficking, child abuse, child exploitation, and exoneration where critical evidence came from smartphones, hard drives, and online communication. But let me just give you some

10 10 examples of cases that involve the content of smartphones. In Louisiana, a known sex offender posed recently as a teenaged girl to entice a 12-year-old boy to sneak out of his house to meet this supposed young girl. The predator posed as a taxi driver. He took this young boy, murdered him, and then tried to alter and delete evidence on both his and the victim s cell phones to cover up the crime. Both phones were instrumental in showing that the suspect enticed this child into his taxi and that suspect was sentenced to death in April of this year. That was in Louisiana. In Los Angeles, police investigated the death of a two-year-old girl from blunt force trauma to her head and there were no witnesses. Text messages stored on her parents cell phones between the two of them and with other family members proved that the mother had caused the young girl s death and that the father knew what was happening and failed to stop it. The text messages stored on their devices also provided that they failed to seek medical attention for the little girl for hours after she convulsed; that they went so far as to paint her with blue paint to cover her bruises before calling 911. Confronted with the evidence from the phones, both parents pled guilty. In Kansas City, the DEA investigated recently a drug trafficking organization tied to heroin distribution, homicides, and to robberies. And DEA got search warrants for the smartphones used by some members of the group and they found stored on the phones text messages that outlined the distribution train and tied that group to the supply of lethal heroin that had caused 12 overdoses and 5 deaths in high school students in that area. In Sacramento, a young couple and their four dogs were walking down the street at night when a car ran a red light and struck them, killing all four dogs instantly and severing the young man s leg and leaving the young woman in critical condition. The driver fled and that young guy died several days later. Using red light cameras near the

11 11 scene, the California Highway Patrol identified and arrested a suspect and seized his smartphone. The GPS data stored on that phone placed the suspect at the scene of the accident and showed that he fled California right afterwards. He was convicted and is serving a 25 years to life term for second-degree murder. And lastly, I ve mentioned ways in which we ve used it to prosecute. It has been used to exonerate innocent people. In Kansas, data from a cell phone was used not long ago to prove the innocence of several teens accused of rape. Without access to the phone or the ability to recover a deleted video from that phone, several innocent young men could have been wrongly convicted. These are cases, just a few examples that I pulled together, in which we had access to the evidence we needed, but we re seeing more and more where we believe significant evidence is on that phone or on that laptop and we can t crack the password. If this becomes the norm, I suggest to you that homicide cases could be stalled, suspects walk free, child exploitation not discovered and prosecuted. Justice may be denied because of a locked phone or an encrypted device. So here are my personal thoughts about this. I am deeply concerned about it as both a law enforcement officer and a citizen. I understand some of this thinking in a post-snowden world, but I believe it is mostly based on a failure to understand why we in law enforcement do what we do and how we do it. I hope you know that I am a huge believer in the rule of law, but I also believe that no one in this country should be beyond the law. There should be no lawfree zones in this country. I like and believe very much that we need to follow the letter of the law to examine the contents of someone s closet or the contents of their cell phone. But the notion that the marketplace could create something that would prevent the closet from

12 12 ever being opened, even with a properly obtained court order, makes no sense to me. I think it s time to ask, so where are we as a society? Are we no longer a country that is passionate both about the rule of law and about there being no zones in this country beyond the reach of that rule of law? Have we become so mistrustful of government and law enforcement in particular that we are willing to let bad guys walk away, willing to leave victims in search of justice? I know there will come a day where it will matter a great deal to innocent people that we in law enforcement cannot access certain types of data or information, even with court authority. We have to have discussions about this before those days come. I believe that people should be skeptical of government power. I am. I think this country was founded by people who were, who knew you could not trust people in power, and so they divided the power among three branches to set interest against interest. And then they wrote a Bill of Rights to ensure that the papers and effects of the people are secure from unreasonable searches. But the way I see it, the means by which we conduct surveillance through telecommunications carriers or Internet service providers, who have developed lawful intercept solutions, is an example of a government operating the way the founders designed it, with the Executive, the Legislative, and Judicial branches proposing, enacting, executing, and overseeing legislation pursuant to the rule of law. I suggest 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. I think it s time to have an open and honest debate about liberty and security. Some have suggested that there s a conflict between liberty and security. You have to give up a little of one to get some of the other, and I reject that framework. I think when we are at our best in law

13 13 enforcement, in national security, and public safety, we are looking to enhance security and liberty. When a city posts police officers on a dangerous playground, security has promoted liberty, the freedom to let a child play without fear. The people of the FBI are sworn to protect both security and liberty. It isn t a question for us of conflict. We care deeply about protecting liberty through due process while also safeguarding the citizens that we re here to protect. So where do we go? These are tough issues. Finding the space and time in our busy lives to understand them is hard. That s why I m so grateful to Ben and to Brookings for carving out some space for us. Intelligent people can and do disagree and that s what s awesome about a democracy. That is what is great about American life: smart people disagreeing to come to the best answer. I have never been, I don t think, anyone who is a scaremonger, but I m in a dangerous business, so I want to ensure that we discuss the impact of limiting the court-authorized law enforcement tools we use and that we talk about what are the losses associated with our inability to collect information pursuant to law. We in the FBI are going to continue to throw everything we have at this challenge, it s costly, it s inefficient, it takes time, but we are going to work to make sure that whenever we can, we re able to execute court authority, but we need to fix this problem. It s long past time. We need assistance and cooperation from companies to comply with lawful court orders, so that criminals around the world cannot seek safe haven. We need to find common ground. We care about the same things. I said because I meant it. The companies that we ve talked about, that we ve talked to, are run by good people who care about the same things. We know an adversarial posture is not going to help any of us to make progress here.

14 14 We understand the private sector s need to remain competitive in the global marketplace. It is not our intent to stifle innovation or to undermine U.S. companies, but we have to find a way to help these companies understand what we need, why we need it, and how they can help while protecting privacy rights and network security. We need our private sector partners to take a step back, to pause, to consider, I hope, a change of course. But we also need a regulatory and legislative fix here 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 ve entrusted us to do in the way you want us to do it. Perhaps most importantly, we need to make sure the American public understands the work we do and the means by which we do it. I really do believe we can get there. I really do believe that we can find a reasoned and practical approach and that we can do it together. I do not have a perfect solution to suggest to you, but I think it s important to start the discussion. I am very happy, in fact eager, to work with Congress, with our partners in the private sector, with my law enforcement and national security counterparts, and with the people we serve to find the answer, to find the balance that we need, to find both liberty and security. So thank you for being here today to participate in this conversation. Thank you for caring about these issues. I look forward to your questions. (Applause) MR. WITTES: So I m going to ask a couple questions and then I m going to kick it to you guys. I just want to start, why now? I mean, the crypto wars, people thought they were kind of resolved 20 years ago. There are stresses on CALEA, but they don t seem appreciably different than they were a year ago. And yet, all of a sudden, this whole thing has been reignited. Why? MR. COMEY: That s a great question. I think it is an accumulation,

15 15 another brick in the load of the going dark, that especially hit me when I took this job a year ago and got briefed on our capabilities and the limitations on them. And I do think a catalyst -- I can only speak for me personally -- was the announcement of the default encryption on the devices which are ubiquitous. And I looked at that and I thought, you know, these are good folks responding to a market imperative, but, holy cow, where are we going? And so that energized me to say we ve got to have a conversation about this. MR. WITTES: And, you know, you left government I think last in MR. COMEY: 05. MR. WITTES: 2005, sorry. You were not on the investigative side at the time, but you certainly had a sense of how light and dark things were. How different is it today than it was? You know, when you came back into government, how much darker is the world than before you left? MR. COMEY: My sense is dramatically darker, especially because of the proliferation of so-called nontraditional communication means; the proliferation of different apps for communicating, peer-to-peer communications. The outside-calea communication channels, I don t have a number, but have increased dramatically since MR. WITTES: So you described in your remarks that you wanted not a back door, but a front door. And I m trying to understand what that means technically to have an ability to decrypt with an order that does not create technical vulnerabilities that others could exploit, either foreign intelligence services or I think probably a lot of people believe our own intelligence services. What are you envisioning when you talk about building in a front door, lawful intercept, decryption capability? MR. COMEY: Yeah, I don t think I m smart enough to give you a highly reliable answer there. What I ve been told by people smarter than I is that anytime

16 16 there s a door, there s a risk that someone s going to try to pick the lock and get into the door. But if the door is built transparently in the front end, designed into the product, the chances of vulnerability being unseen are much lower than if it is cobbled on at the end, after the device has been created. So this us going to providers and saying can you now build one, the response to us is justifiably that s kind of a risky thing to do. And smart people have told me that the best way to do it, never risk-free, but far less risky, is to build it at the front end. MR. WITTES: So you re not talking about necessarily a revival of the sort of key escrow idea from the mid- 90s. You re speaking more thematically than that, is that right? MR. COMEY: Correct. Yep, correct. Ideally I d like to see CALEA written so that a communications provider has an obligation to build a lawful intercept capability into the product that they provide, not that we hold some universal key. MR. WITTES: Gotcha. So on one of your 60 Minutes, I think the most recent one, interviews -- MR. COMEY: It s on every Sunday night for the rest of the season. (Laughter) MR. WITTES: It s the Jim Comey Show? MR. COMEY: Yeah, it ll never end. MR. WITTES: You were asked whether all of these interceptions take place with a warrant, and I was actually a little surprised at your answer. You said categorically that the FBI does not do interceptions without a warrant. And I was a little bit puzzled by that because can think of at least a few situations in which you guys are authorized to do interceptions without a warrant. And I was wondering, is there some policy that you ve adopted that you categorically don t do surveillance without a warrant

17 17 or when you said that were you incorporating various warrant exceptions into your remarks? MR. COMEY: That s fair question. When I was asked that question I gave an answer that I thought was fair and accurate. And people gave me feedback afterwards saying it was insufficiently lawyerly, it should been longer, and what about the exceptions? And so I think that s very fair feedback actually and I wish I had thought of it in the moment. But it remains true that in the over, over, overwhelming number of our cases, we have court authority to collect the content of s or telephones. But there are exceptions to the warrant requirement. The two that leap to my mind are important. One is -- they didn t leap to my mind then, they ve leapt to my mind since -- that consent, where someone gives us consent, to monitor, we can be reading the content of s or listening to telephone calls that are made to the consented party. And second, where there is collection on a non-u.s. person overseas, under Section 702, FISA s 702, that is authorized by the court, if an American is communicating with that person, that communication is going to sit in the government s databases and my agents doing an investigation will query that database and may see that and read it. They do not go back to the court and get authority for their look at it. Our view being that it was collected lawfully in the first place, but that s an exception that if I d thought about in the moment I would have mentioned it. MR. WITTES: So a lot of people are going to say, you know, we had this fight in the 90s. The key escrow idea lost because building in insecurity is inherently a bad idea and that if you want things to be secure, you ve got to build security, not build, you know, other ways in. In the same 60 Minutes episode, or maybe it was the other one, you said there are two types of American companies: the companies that are being hacked by the Chinese and the companies that don t know they re being hacked by the

18 18 Chinese. Isn t there a tension here between, on the one hand, the concerns about cybersecurity and, on the other hand, the insistence that we ve got to build in a certain layer of insecurity for one particular set of actors? Are we ultimately facing a choice here between a secure Internet and an insecure Internet? MR. COMEY: Yeah, I don t think so. I mean, this comes back to what I said I think in response to the first or second question, that it s about relative risk. There is much more risk associated with the after-the-fact intercept capability being built in. There is a non-zero risk associated with building it in in the first place. But there s also a risk to us as a society by foregoing the ability to collect that information with lawful authority. So my view, and reasonable people may disagree, is that the risk mitigation associated with building it at the front end and the risk avoidance by not having a dark spot that s spreading across our entire country makes sense. MR. WITTES: Let s go to all of you. Wow, we have a lot of questions. Let s start with Chris Soghoian. And when I call on you, please wait for the mic. And please keep questions short and let s frame them in the form of a question. MR. SOGHOIAN: Hi, Director Comey. My name is Chris Soghoian. I work for the ACLU. Over the last few years, we ve learned that the lawful interception systems at Google and Microsoft have been hacked by foreign governments. Google and Microsoft were both hacked by the Chinese and then Microsoft s law enforcement team was subsequently hacked by the Syrian Electronic Army. These are companies that invest vast sums in data security and are probably the leading companies on the security front. Whether you want to call it a front door or a back door, if these

19 19 companies are delivering end-to-end encrypted communications, the only logical way to provide law enforcement access is to escrow a key. And if the keys are there, whether they re in law enforcement hands, a third party, or in the company s hands, people will try and steal them. Last year, Foreign Policy ran an article by Matthew Aid in which they described a team of FBI agents backing a trash truck into the Czech embassy s facilities and stealing a cryptographic machine and the keys associated with it. I mean, I think many people don t really understand that the FBI is also in the business of stealing encryption keys in its capacity as a foreign intelligence organization. So given that you know that keys can be stolen, given that these companies are constantly having sophisticated adversaries trying to steal their private information, and given that we have multiple examples of lawful interception systems being successfully comprised, what gives you confidence that some small Silicon Valley company, when mandated to do so, can build a secure interception system? MR. COMEY: Thank you for that question. I don t think that anybody with complete confidence can build an interception-proof system. That s what I meant when I said the risk is non-zero. I simply think that when you aggregate the various risks and tradeoffs, the alternative doesn t make any sense to me. Saying, well, because it s hard, because we can t eliminate risk, therefore, a universal encryption and not just a going dark, but a complete darkness for law enforcement, is a place we want to go. I agree with you. I think there s risk associated with what I m suggesting. I just think given the other risks involved that it makes sense. MR. WITTES: David Sanger? MR. SANGER: Thank you, Director Comey. David Sanger from The New York Times.

20 20 You talked a lot about the enforcement side of this and you mentioned the pendulum swing from the Snowden disclosures, but you didn t talk very much about the NSA and others. And one of the things we ve learned from the Snowden disclosures is that the NSA found ways around encryption at Google and other places by going into the communications between the servers and so forth. So when Apple and Google make these announcements, the kinds that you re concerned about, clearly they re trying to demonstrate to the Germans or to the Brazilians or anybody else who was outraged by these disclosures, that there is no hole, that they have deliberately thrown away the key so that the NSA couldn t do that in their systems. That s essentially what s going on here. I haven t heard yet from the administration any kind of guarantee that if you created the kind of portal that you ve described, front door or back door, that there would then be assurances that the NSA didn t do again what it was disclosed to have been doing before. So tell us a little bit about the discussion inside the administration about how you d provide those assurances. MR. COMEY: That s a good question. I don t think I m in a position to talk about discussions inside the administration. It actually, in my 12 months, has not been extensive because there s been lots of other things going on. And I guess I probably wouldn t tell you anyway, David, what was going on inside the administration. (Laughter) But I understand totally. That s why I m not trying to jump on the companies. I understand totally the market imperative. Look, I ve worked for two companies before coming back to the government. I get it. But I think that we can address their concerns by being transparent as a country about here are the lawful authorities by which the government can enter through Google s door or through Apple s door, so that they can assure customers no one s getting in here except through clearly

21 21 understood channels. MR. WITTES: Gary? MR. MITCHELL: Thanks, Director Comey. I m Garrett Mitchell. I write The Mitchell Report, which is a publication with a slightly smaller circulation than Mr. Sanger s. (Laughter) MR. COMEY: Does he read it? (Laughter) MR. MITCHELL: It is interesting to hear you talk in the abstract about presumably the chief executive officers, the members of the C suite in the companies that are clearly at issue here, as being well-intentioned, patriotic, et cetera. And yet, they don t want to go where you want to go. I wonder if you could characterize for us the nature of the argumentation that they use, the logic, if you will, of their perspective. And as you said, you know, one of the wonderful things about a democracy is that people can do that. One of the not so wonderful things about a democracy is that people can do that. And so we get nowhere. So I would be curious if you could characterize for us the point of view, the sort of internal logic that the people that you re dealing with have and the soundness of that point of view, even if you disagree with it. MR. COMEY: That s a good question. I don t want to talk about particular conversations because I want to make sure that conversations are robust; maybe in general. I would draw it from some of the questions here and some of the things I alluded to in my remarks. They are responding to a market imperative, right, where they re getting beat up around the world because the American government is reading everything on your systems, and so their competitors are using it against them all around the world. And they re trying to respond to that by saying, no, no, that s not true, our stuff is protected. I get that and that makes sense for them to advocate that position.

22 22 They re not responsible for the other risks that we ve talked about, and so they re advocating in good faith a view that makes sense to me from their perspective. I think what they re not able to advocate because it s, frankly, not the thing they own except as citizens of this great country is the safety tradeoff, the security tradeoff. That s probably the best way to describe it. MR. WITTES: Yes, right here in the front. MR. JOYAL: Thank you very much. Director, Paul Joyal from NSI and board of directors of InfraGard. I d like to ask you a question based on my previous experience, one as a federal law enforcement officer, as well as a Senate Intelligence Committee. In the past, in the 70s and 80s, we had a lot of debates concerning civil liberties and protections and the activities of our intelligence service. There was a response with attorney general guidelines to put in place rules and regulations until the law basically was changed or catch up. I understand the problem with CALEA. In the Internet of things, it really doesn t address the problems that we have. But just like Aristotle said in his writings, and when he asked the question should a city have walls, we have an obligation, one, to protect privacy; we also have an obligation to allow law enforcement to do its job to protect its citizens. Are you taking any steps short of a law change to try to put in systems that will assure the American public that we re going to do a better job at protecting their privacy? MR. COMEY: Well, that s a good question. The FBI has a ton -- and if I get any complaint from my troops is that we have an overwhelming amount -- of policy that governs their ability to obtain information in investigations of all kinds. And my response to my folks is I get your frustration, but I like that. I like the restraint.

23 23 So I m not -- I look at the restrictions on FBI agents ability to conduct an investigation, to collect electronic evidence, and they re pretty darn extensive. I mean, no one has suggested to me an improvement that s leaped to mind. So I m focused on trying to get the law changed so that those with whom we interact with lawful process are able to comply with it. MR. MARGOLIS: Hi. Joel Margolis with Subsentio, Inc. What can you tell us about the Bureau s plan to update the CALEA statute? MR. COMEY: Not much more than I just told you, which is I m hoping we can now start a dialogue with Congress on updating it. There had been an effort, I gather, underway before I took this job that got blown away in the post-snowden wind, which I understand. But I think now it s an opportunity to maybe stand in that wind a little bit and have that conversation. So I think the first step is to talk to responsible, thoughtful people on the Hill about what makes sense and how do we get that kicked around. MR. WITTES: Cam Kerry? MR. KERRY: Thank you, Director Comey. I m Cam Kerry. I m here at Brookings as a visiting fellow, but when I was at the Commerce Department was part of that effort, went back and forth with your predecessor about some of the potential reforms to CALEA. A lot of the issues that have been raised today were part of that discussion. But, you know, I want to ask about is there one other? You know, as we deal with sort of the explosion of data, there s also the phenomenon and I think a widespread concern that we re also going bright. There s a tremendous amount of digital information that is available to companies and to governments. And one of the issues that we face in whatever we do in addressing public policies to deal with that data is the impact on international norms. So my question is if -- and it s at a parallel of some of the cybersecurity

24 24 questions -- if we go down this road and take steps that would break encryption, what is the impact on more repressive countries around the world that will follow that example? MR. COMEY: That s a good question. I don t think -- it s something I ve thought about, but, frankly, not well enough to give you an intelligent answer at this point. I think that s got to be part of the discussion because I ve also heard that, people saying, well, okay, we can have transparency in the United States defined clearly what access is given and when, but that s a precedent then for repressive regimes to get anything they want. Others have said, well, the repressive regimes are getting anything they want anyway, as a condition of doing business there. So I don t think I know enough at this point yet to give you a good enough answer. MR. SURMA: Thank you, sir, for taking my question. My name is Annan Surma and I m an author. And I read newspapers and I read a lot about surveillance and everything, but I have a question about my situation. Everything that I do the whole day I can see as a technically generated dream. Everything that I do. I don t know whom to contact for this kind of -- MR. COMEY: I m sorry, I missed the last part of that sentence. Everything, what s happening? MR. SURMA: Everything that I do in a whole day, I can see as a TV serial, as a technically generated dream. And for this kind of -- I don t know whom to contact. MR. COMEY: I have no idea, yeah. Probably somebody at Brookings. (Laughter) I don t know. I m starting to call on people. Sorry, it s not my job. MR. WITTES: No, no, go ahead.

25 25 MR. COMEY: No, no, it s your job. MR. HOFFMAN: Lance Hoffman -- MR. WITTES: I ll just duck out. MR. COMEY: Yeah. MR. HOFFMAN: Lance Hoffman, George Washington University, Cyber Security Policy and Research Institute. I edited a book 20 years ago called Building in Big Brother, and it seems like we re in the same movie again, but maybe a little different, I hope, because I heard something you said, which was what s the cost? And my question for you is, back then, we didn t have any, to my mind, serious cost-benefit analyses that really people could trot out and say, look, here are the tradeoffs. Has your organization or any other organization you know of yet made some serious cost-benefit analyses, not only economic, which are important, but also the social costs and law enforcement downsides and everything else. MR. COMEY: The answer is not to my knowledge. I ve identified only costs and benefits in kind of the rough order of magnitude kind of way, but not in any quantitative sense so far as I know. It d be useful. I m sure smart people have it. It d be a useful part of the discussion. MR. WITTES: Evan Parris. MR. PARRIS: Director, would you acknowledge perhaps that some of the distress that you just spoke about comes from the government not being fully truthful about what it was doing with -- I m referring to Clapper, the testimony in Congress, and even the FBI s own history with national security letters. So perhaps, you know, the distress comes partly from that. Would you acknowledge that that may be part of the problem here? MR. COMEY: Yeah, except I m going to -- before I give you a yes, I

26 26 want to take apart your question a little bit, Evan. I don t agree with the predicate, your characterization of Jim Clapper, in particular, but we can talk about it offline at another time. But I think a lot of it comes from justifiable surprise on the part of the U.S. people as to the extent and nature of the surveillance being conducted in the name of the United States. Now, I say the U.S. people, I believe very strongly that their elected representatives had a complete insight into it. So when people talk about that I say, yeah, I can understand people being freaked and surprised, but I also think I ve yet to see the rogue conduct, the lawless conduct that folks talk about. I see the government operating with all three branches. But that doesn t mean that folks aren t justifiably reacting, saying, whoa, they re doing what? And so I think that more than anything else has fed what I call the post-snowden wind, which makes sense to me. I mean, the scope of some of it, especially to someone who doesn t live in it, breathtaking. Yeah. MR. WITTES: Ma am? MS. YONG: Thank you. My name s Li Yong. I really appreciate the FBI chief can be here. Now you got to know all the stories. I submit all the documents, some evidence to the Department of Justice and many agencies and lawmakers. They don t really give a response. So now my question is you say you re in contact with three branches. So now suppose Snowden, and we are talking about a lot of surveillance, we are talking about people s or something have been hacked, so now my question is can you really, just simply based on that fact, can you identify who is us hacking people s account or terminating their social medias? MR. COMEY: Okay, I really don t think I m in a position to answer that.

27 27 MR. WITTES: Greg Nojeim. MR. NOJEIM: Hi, I m Greg Nojeim from the Center for Democracy and Technology. Talk to us a little bit more about the international implications of these ideas. I mean, for example, if you re Apple or you re selling Androids, you can t sell an NSA/FBIready iphone in Europe, so what are you going to do? Are you expecting them to build two kinds of iphones, two kinds of Android phones? Are they going to have to build three or four or six kinds when other countries follow our lead and impose the same kind of mandates you re talking about? And what happens in the Indias and the United Kingdoms of the world? MR. COMEY: That s a great question. I don t want to repeat the answer I gave earlier. I don t think I d market it as an FBI- and NSA-ready phone. (Laughter) Maybe an FBI-ready phone. We may have a better brand around the world. But instead, again, I haven t gamed this out in my head completely, but I could imagine them saying we as an American domiciled corporation will comply with lawful process, you know, enacted pursuant to law -- excuse me, pursuant to law, enacted by Congress, we will comply with requests of the U.S. Government for information in connection with lawful investigations. And that it wouldn t be about marketing the phone. Right? It d be about them retaining some capability to be able to access the information. And, again, I m not smart enough technically to figure out how that would work, but something like that. But I think it s a serious conversation to have about how they would do it, in particular. Now, where we may get is to a place where the U.S., through its Congress, says you know what? We need to force this on American companies and maybe they ll take a hit. Someone in some other country will say, ah, we sell a phone that even with lawful authority people can t get into, but that we as a society are willing to

28 28 have American companies take that hit. That s why we have to have the conversation. MR. WITTES: We have time for a couple more questions. I m going to try to get a few people and then let the director wrap up. Sir? MR. LEVINE: Hi. Mike Levine with ABC. You talk about the balance and sort of cost-benefit and you brought up the sort of hypothetical example of a kid being kidnapped and trying to access the information. Do you know of any specific cases where someone was in danger, was rescued, but wouldn t have been rescued had you been blocked from the information you re talking about today? MR. COMEY: That s a good question. I think I gave you four cases where the information on the phone, which would be blocked if it was encrypted, would not have been available to us. MR. LEVINE: But that was the prosecution as opposed to saving someone. MR. COMEY: I see, so rescuing someone before they re harmed? MR. LEVINE: Correct. MR. COMEY: Someone in the trunk of a car or something? I don t think I know yet. I ve asked my folks just to canvass. I ve asked our state and local partners are there examples where this -- I think I see enough, but I don t think I ve found that one yet. I m not looking -- here s the thing, when I was preparing this speech one of things that I was inclined to talk about was to avoid those kinds of sort of edge cases because I m not looking to frighten people. Logic tells me there are going to be cases just like that, but the theory of the case is the main bulk of law enforcement activity. But that said, I don t know the answer. I haven t found one yet. Yeah. MR. WITTES: We have time for one more question. Over there, sir.