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FBI Director's interview rings with glorious noise of doublespeak

The U.S. Federal Bureau of Investigation's (FBI) director James Brien Comey, Jr. is one of the nation's top cops.  But he's drawn the ire of civil liberty groups and citizen activists alike both over allegations of his agency's role in helping the U.S. National Security Agency (NSA) spy on Americans and over his recent comments to the press that suggest it's "dangerous" for mobile firms to offer full-device encryption.  
 
Even outside the civil liberties space, this attitude is drawing quiet but pointed criticism from the world of enterprise IT, where encryption is often essential for protecting corporate secrets against both private and public espionage.
 
I. Director Comey is Still Peddling the "We Need a Warrant" Myth
 
In a new interview with CBS Corp.'s (CBS) 60 Minutes program, Director Comey does not shy from his past remarks.  In the bizarre interview, he seems to contradict himself just seconds later at times.

FBI Director James Comey
FBI Director James Comey [Image Source: Bloomberg]

For example, early in the interview he says:

I believe that Americans should be deeply skeptical of government power. You cannot trust people in power. The founders knew that. That's why they divided power among three branches, to set interest against interest.

During the interview he states that the FBI does not perform surveillance without a court order.  


But minutes after expressing his boilerplate "don't trust us", we'll earn your trust styled response, he refuses to give the interviewer, Scott Pelley, an answer to a seemingly simple question -- whether the FBI uses general warrants to perform mass collection of Americans' data, which is then passed along to the U.S. National Security Agency (NSA) for analysis and long-term storage.

FBI Director interview
FBI Director Comey responds to a question on 60 Minutes. [Image Source: CBS]

He responds:

That's one of those things I don't know whether I can talk about that in an open setting so I, I better not start to go down that road with you... We can't explain everything to everybody or the bad guys will find out what our capabilities are, both nations and individuals. What I mean is I need to be able to explain it either directly to the American people or to their elected representatives, which we do extensively with Congress.

But even Congress of late has expressed confusion and concern over how the FBI, NSA, and other intelligence agencies are using their powers to spy on Americans.  At the crux of the issue are so-called "general warrants".

Under the Oct. 2001 USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act, the Bush administration repurposed the NSA to shift gears from its original task of spying on citizens of foreign countries to spying on citizens in the U.S.  

PATRIOT Act
The PATRIOT Act makes mass spying possible. [Image Source: ACLU]

Technically, the NSA is not allowed to "touch" or "collect" records of American citizens, but it engages in a mixture of word games and delegation to circumvent U.S. law.  Specifically, affiliate agencies like the FBI are allowed under the PATRIOT Act to seize the "business records" (50 U.S.C. § 1861) of one or more Americans, records that are then passed to the NSA.

NSA ACLU protests
Under the PATRIOT Act, mass spying is legal via mass warrants. [Image Source: AP]

The crucial problem is the "or more" part.  Under the PATRIOT Act, a sealed court order can target millions of Americans.  Recent disclosures indicate that the NSA uses them to target up to 99 percent of internet-connected Americans.
 
This kind of mass warrant (also termed "general warrants") had last been used by the British to try to keep their unruly American colonists in line, prior to the revolution.  Such mass warrants targeting thousands or even millions of people were generally considered an aberration of legal ethics and were assumed forbidden by the Constitution's due process protections.  But their revival in 2001 and courts' decision to uphold them thus far, has suggested that assumption might be wrong.
 
This process was upheld by Congress in 2006 with minor modifications by the U.S.A. PATRIOT Act Additional Reauthorizing Amendments Act of 2006, which installed a rudimentary appeals process to the mass warrants doled out by "secret" FISA courts (whose orders were sealed and not made accessible to the media or public and whose hearings were closed).  The 2006 modifications also added additional reporting to Congress, however, the recent NSA spying revelations have indicated Congress is still relatively in the dark about the extent of domestic (albeit being directly culpable for it from a legislative standpoint).
 
Director Comey claims:
 
We cannot read your emails or listen to your calls without going to a federal judge, making a showing of probable cause that you are a terrorist, an agent of a foreign power, or a serious criminal of some sort, and get permission for a limited period of time to intercept those communications. It is an extremely burdensome process. And I like it that way.
 
But disclosures by whistleblower Edward Joseph Snowden indicate a far different story in which virtually everyone's communications are intercepted (with warrant, but mostly under general warrants, not traditional ones) on a continual, long-term basis.  
 
It's possible the FBI does not do this kind of long-term interception (leaving it to other agencies like the NSA, instead), but given the suspicious wording in many of his responses in the interview, one must wonder if this is even true.  Someone is clearly spying on Americans' digital lives nearly non-stop and providing that information to the NSA, based on recently disclosed government documents.
 
II. How I Learned to Start Hating Encryption and Securing My Digital Data
 
In the interview, Director Comey refers to some sort of standoff back in 2004.  At the time he was a district attorney general and was urged to embrace a "massive... top secret, warrantless surveillance [program] targeting foreign terrorists".  He claims that he threatened to hand in his resignation letter and recalls his feelings, stating:
 
[I] probably [felt] a little sick. And a little sense of unreality that this was happening.
 
But again, Director Comey tries to disguise in his commentary the existence of mass surveillance with general warrant under the PATRIOT Act.  In other words, he's pointing to examples of blatantly illegal activity, while ignoring that you can now accomplish almost precisely the same kinds of programs with legal mechanisms.  The interviewer does force him to eventually acknowledge this, asking:
 
The program that we've discussed, as I understand it, was in fact reauthorized, but in a modified form? It was made to conform to the law in your estimation?
 
He responds "yes."

Secret Courts
Director Comey claims he stood up to warrantless surveillance, putting his career on the line in 2004.  But he effectively admits to using mass surveillance provisions of the PATRIOT Act to "legally" install nearly the exact same surveillance scheme via "secret" (sealed) FISA court orders. 
[Image Source: Before Its News]

And the interview also touches on Director Comey's controversial comments about smartphone encryption.  The debate in the first place is rather ridiculous on a number of levels.  To state the most obvious, the FBI and NSA are believed to seldom rely on grabbing data directly off devices.  Rather, they grab data from the cloud via those aforementioned mass warrants.

FBI data grab
Most smartphone data is grabbed directly from the cloud. [Image Source: John Bradley]

But for some reason Director Comey continues to fixate on the more rare instance of a warranted data grab on devices.  Asked about his feelings on device encryption, he reiterates that his perspective hasn't changed much, indicating:

The notion that we would market devices that would allow someone to place themselves beyond the law, troubles me a lot. As a country, I don't know why we would want to put people beyond the law.

That is, sell cars with trunks that couldn't ever be opened by law enforcement with a court order, or sell an apartment that could never be entered even by law enforcement. Would you want to live in that neighborhood?

This is a similar concern. The notion that people have devices, again, that with court orders, based on a showing of probable cause in a case involving kidnapping or child exploitation or terrorism, we could never open that phone? My sense is that we've gone too far when we've gone there.

But as we pointed out in previous analysis, these kind of claims are disingenuous as they ignore the fact that consumer-grade encryption is often very breakable, if the government chooses to invest sufficient resources (hopefully with warrant and not a general one).  Further, his complaint is simplistic, as it fails to address policy.  Namely, if we're to assume he's implying citizens should be disallowed encryption, should the same prohibition be extended to corporations (who are "people" under U.S. law, technically)?  And if so what's to protect legitimate business secrets?

Android and iOS
Android and iOS both now feature file encryption, which Director Comey claims is dangerous.

Indeed, it seems virtually impossible to ban consumer encryption without either seriously compromising U.S. security, or, alternatively, stooping to some sort of double standard.
 
Lastly, the entire premise that companies are denying the FBI access to data of people that are engaging in child predation or terrorism is made farcical by the fact that the companies Director Comey has "called out" -- namely Google Inc. (GOOG) and Apple, Inc. (AAPL) -- both have a long track record of voluntarily complying with warrants and handing over data in such cases.  
 
He's essentially baked up a fictional problem of a company denying access to a child predator's data, in order to justify far more intrusive and legally questionable kinds of mass data requests.  Most of these questionable requests target law-abiding citizens, despite what he says.
 
III. Don't Trust Us... or ... Uh Maybe, Do...
 
Director Comey concludes the interview pointing to the FBI's adversarial investigation of the late Rev. Dr. Martin Luther King, Jr.  He comments:

The lesson is the importance of never becoming untethered to oversight and accountability. I want all of my new special agents and intelligence analysts to understand that portion of the FBI's history, the FBI's interaction with Dr. King and draw from it an understanding of the dangers of falling in love with our own rectitude.

Rev. Dr.Martin Luther King, Jr.
"I have a dream... that the NSA will stop spying on everyone."  Director Comey claims to be inspired by the late Rev. Dr. Martin Luther King, Jr., who was a former FBI investigation target.
[Image Source: The Univ. of Nebraska]

But it's somewhat hard to take his words seriously when his entire justification of how he's being "transparent" is supposed closed door interactions with Congress, which many in Congress now say is insufficient, and by vague recollections, which even in their heavily redacted state hint at questionable legal tactics.
 
Director Comey says that Americans shouldn't blindly trust the FBI.  But over the course of his recent interview, he in effect suggests that Americans should blindly trust his FBI for national security's sake.  The argument is downright bipolar in nature.

Source: CBS





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