FBI Director James Comey testified before the Senate Judiciary Committee (SJC) and the Senate Select Committee on Intelligence (SSCI) today on “Going Dark” and the balance between public safety and privacy. Director Comey didn't say much that was new in his testimony, but there are a few things we picked up on.
1) SJC - Director Comey and Deputy Attorney General Sally Yates said they didn't want a one-size-fits-all legislative solution. What they want is to work with companies to create a solution that would allow them to access data when they have a warrant for it through the communications companies.
2) SJC - Director Comey reiterated his view that there must be a technical solution to both allow the FBI access to encrypted messages and ensure the strongest possible security for digital communications. While he said he doesn’t know himself what the right solution is to balance law enforcement’s need for access to evidence with personal privacy, he is confident that “smarter people than [he]” can come up with new technical solutions, and called on innovators and Silicon Valley to essentially try harder.
3) SJC - Senator Jeff Flake asked, in the event that Congress decides that there is no way to provide a backdoor to law enforcement, what other means law enforcement has to ensure national security? Comey replied that he did not have a good answer to that question, but it might make sense to pass stronger laws to compel people to decrypt their own communications, although that runs into problems under the fifth amendment. Law enforcement might also be able to make more aggressive use of social media combing tools and undercover operations.
4) SJC - To answer Senator Franken's question about whether the FBI is developing ways to get around strong encryption, Comey said that they cannot currently break strong encryption, but that they are working to find other ways to get around it.
5) SJC - Comey said that law enforcement at the national and local levels have different needs. Local law enforcement needs greater access to data at rest for criminal investigations, whereas national law enforcement needs better access to data in motion for national security investigations.
6) SSCI - Responding to Senator Burr’s concern that new government access requirements in the US will drive innovation overseas, Comey said that we should work in collaboration with other “civilized, rule of law countries.” He argued that if a country like China demands the same kind of access that he wants, that would actually tighten standards for the Chinese because they don’t operate under the constraints of due process that he does.
7) SSCI - When asked about the outages at the New York Stock Exchange, United Airlines, and the Wall Street Journal today, Comey said the initial information provided to the FBI suggests that the WSJ outage was caused by people flooding their website for information on what happened at the NYSE.
8) SSCI - Comey acknowledged that public safety is not the job of tech companies, but that they are patriotic and well-intentioned, and he wants to find ways to incentivize them to help him to do his job.
9) SSCI - Senator Susan Collins said she was concerned that companies are creating new services with the express intent of thwarting legal law enforcement, and that she was very upset that companies would intentionally try to keep evidence out of the hands of law enforcement. Comey replied that, while they may market some of their services that way, he wasn’t sure that was really their underlying intent. Later in the hearing, he also said that social media companies (particularly Twitter) have been great about helping law enforcement take down content and user accounts that advocate crime and terrorism.