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August 01, 2016

Comey announces upcoming conversation on national security and privacy issues

FBI Director James Comey, speaking Aug. 12 at the ABA Annual Meeting, focused his remarks on the balance between national security and privacy and announced plans for a national conversation on the issues next year.

Comey expressed concern over the increasing inability of law enforcement to execute lawful search warrants and court orders to intercept electronic communications because the electronic devices cannot be unlocked, even by the manufacturers, or the communications are encrypted and cannot be read.

“This is a shadow that’s falling across our work,” he said, explaining that this shadow − this inability to execute on court orders – is expected to worsen as encryption becomes a bigger facet of daily life.

Comey explained that the bargain at the heart of ordered liberty in the United States is that “your stuff is private – unless, with appropriate authority and appropriate predication, the government needs to look at it.” However, the proliferation of default encryption devices is changing this bargain by making “large swaths of our life off-limits to judicial authority, where a judge’s orders are ineffective.”

He stated that he believes that neither the FBI nor technology companies should tell the American people how to live; instead, the FBI’s job is to sound the alarm and explain how the bureau’s work is being impacted in the hope of fostering a national conversation about these competing values and what can be done. 

Thanking lawyers for participating in the conversation, he said that lawyers especially “understand the importance of a robust adversarial conversation to reconcile difficult values.”

Comey noted the anxiety in the United States connected to the threat of terrorism and urged the American people not to give in to the terrorists. “Live in the state of awareness but not disabling fear,” he said.

Addressing cybercrime, Comey said major issues are determining who is responsible and imposing costs on the perpetrators. He said that this “requires tremendous cooperation from our partners around the world.”

Comey also said that transparency drove his decision to make a public statement about the FBI’s recommendation not to bring criminal charges against Hillary Clinton for her use of a personal email system during her tenure as secretary of state. Noting the “extraordinary interest in the matter from the American people,” Comey said he wanted to explain that the FBI had properly conducted the investigation.

Comey’s speech was followed by a panel discussion moderated by Harvey Rishikof of the ABA Standing Committee on Law and National Security. The panel featured Marc Rotenberg, Electronic Privacy Information Center, and Gilman Louie, Alsop Louie Partners.                                                  

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