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FBI Director: Americans Never Had 'Absolute Privacy'

FBI Director James Comey testifies on Capitol Hill in Washington.

FBI Director James Comey testifies on Capitol Hill in Washington. // Evan Vucci/AP

FBI Director James Comey said his agency is preparing for a renewed conversation on encryption by collecting information regarding how “widespread default encryption” has affected law enforcement at the federal level.

Comey said default encryption—especially on mobile devices—in the post-Edward Snowden era has fundamentally impacted law enforcement agencies at the local, state and federal levels, providing a near “absolute privacy” he argued had never occurred before in history. Comey said the FBI has been unable to collect evidence from 650 of 5,000 devices, including mobile phones and tablets, received from state and local governments this year. 

The FBI is tallying that data and other statistics, Comey said, for a public conversation on encryption—specifically the balance between security and privacy—sometime after the Nov. 8 election. Encryption briefly became a hot-button issue in early 2016 when tech giant Apple refused to comply with an FBI request to crack an iPhone used by one of the San Bernardino shooters. 

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“We need space and time and information,” Comey said Tuesday, speaking at the Symantec Government Symposium in Washington. “We need to understand how this is exactly affecting our work. We believe in the FBI that we need a conversation.”

The American people, Comey said, will have to decide whether it will be OK if a growing portion “of the room we protect goes dark.”

The data on those 650 encrypted devices in the FBI’s possession could be used to catch criminals, pursue longer sentences and break into criminal enterprises, Comey said, suggesting the cost of “absolute privacy” will be extraordinarily high.

While Americans have always had a reasonable expectation of privacy, he argued absolute privacy has never existed in America before. Judges, with good reason, can authorize the government to search through “our private spaces,” but encryption changes that. 

“There is something seductive about absolute privacy,” Comey said. “But I stop and think, ‘We’ve never lived that way.’ It changes something at the center of our country that is really important.”

The intensity of the debate over encryption is likely to be high, and privacy advocates do not share Comey’s view.

“What the FBI is asking for is the key to the whole building,” said Nuala O’Connor, president and CEO of the Center for Democracy and Technology, when asked by a reporter about Comey’s earlier remarks. O’Connor said the proliferation of smart devices also increases the effectiveness of surveillance technologies employed by the government. 

“This is the golden age of surveillance,” O’Connor said. “I do not think back doors and product defects are the ways to solve crimes.”

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