At the 2016 ABA Annual Meeting San Francisco, FBI Director James Comey said his controversial decision in July not to recommend prosecution in the Hilary Clinton email case was “an extraordinary circumstance that called for unprecedented action.”
FBI Director James Comey addresses a session during the Annual Meeting in San Francisco
Comey, who was the keynote speaker for the Aug. 5 ABA plenary, “Emerging Issues in National Security and Law Enforcement,” talked about his decision to a riveted audience of lawyers, judges and other legal professionals, as well as introduced a plan for a national conversation with U.S. citizens next year on the issue of encryption and national security.
Comey said transparency was at the heart of his decision to speak to the American public about the agency’s findings and recommendation in the case.
Related video: FBI director urges fearlessness in face of terror threats
“It was unprecedented for the FBI to show the kind of transparency that we did in that particular matter, both as to the facts we found and as to our recommendation,” Comey said.
“First of all, I thought transparency was in order given the extraordinary interest in the matter from the American people,” Comey explained, saying that he thought such transparency would reassure Americans that the investigation was done the “right” way.
“And I thought that given all the other things going on, an independent statement by the FBI was consistent with three things that I care deeply about: the reputation of the FBI, the reputation of the entire Justice Department and the broader sense of justice in the country,” Comey told attendees.
As for his plans for a national conversation on national security, Comey said the FBI is collecting data to present next year in hopes of sparking a national conversation about law enforcement's increasing inability to access encrypted electronic devices. He said this inability by law enforcement, armed with a search warrant or court order for interception of electronic communications, was “a shadow falling across our work.”
He said in the first 10 months of the fiscal year, the agency was unable to access about 650 of 5,000 devices they received from state and local law enforcement asking for the FBI’s help to unlock the devices. “We did not have the technology,” Comey admitted. “Those are cases unmade, that’s evidence unfound. That has a significant impact on our work and the work of law enforcement. We see this shadow, this inability to execute on court orders, becoming more and more a part of our life as encryption – especially strong encryption for data at rest – becomes a bigger feature of our life.”
And it is because of encryption technology’s increasing impact on criminal cases that Comey said a national discussion is warranted because it should be up to the citizens and not the FBI or government officials to decide whether to adapt the technology to help law enforcement access encrypted devices.
“I don’t the FBI should tell people what to do,” Comey said. “I think the FBI should sound the alarm. I don’t think that companies technically should tell people what to do. I think the American people need to decide how do we want to live, how do we want to be governed.”
Comey, who stressed that he is not against encryption and that it is a great thing for public safety, said litigation is not the place to solve problem. He said litigation in the San Bernardino, Calif., terror case was necessary but was counterproductive. “It was necessary because we had to get into the phone. It was counterproductive because it became the focus for emotion and passion that I think was making it hard,’’ Comey said. “People were shouting tweets at each other and it was making it hard to have a complex conversation.”
Comey also shared his thoughts on the topics of terrorism, police misconduct and international cybercrime. He said that there is a lot of anxiety in the United States connected to the threat of terrorism and for reasons he understands.
“San Bernardino, Chattanooga, Orlando -- all the pain and fear that is inflicted on the American public by seeing these images and experiencing these terrible events up closely. It ratchets up anxiety in extraordinary ways,” he said. “It’s very different from 9/11 because of the images that are in real time. It drives anxiety.”
But the director said his ask of the American people is to not give in to the terrorists. “Don’t live in a state of unawareness. Live in the state of awareness but not disabling fear,” he encouraged. “It is an awareness of your surroundings and understanding that two seconds often is the difference between life and death.”
On the same day in which a black Chicago teenager was shot and killed by police, Comey said the judicial system is not rigged in any way against people of color, especially African-Americans, and that law enforcement must do a better job of gaining the trust of the community.
“Each incidence of real or perceived police misconduct or attack on police drives them farther apart,” Comey said. “It is a big program for a whole lot of reasons. I think the only answer to it is that we have to get up close to each other because it’s hard to hit up close. We’ve got to show each other the true heart of law enforcement.”
In regards to cybercrime, Comey said the biggest challenge for his agency in dealing with international cybercrime and international prosecution is twofold – attribution and imposing cost on the criminal actors.
“Attribution first. Those of you who know cyber know that it is difficult to figure out where something is coming from and whose fingerprints are on it. And we’re all under great pressure to try and come up with that answer quickly. That’s our first challenge,” Comey said.
“Imposing costs is uniquely challenging when you’re talking about actors who are so frequently outside the reach of the United States. Whether they are criminal actors or state actors, they are sitting at a keyboard somewhere around the world. Getting ourselves in a place where we can influence their behavior is at the heart of our strategy. We really want criminals and nation state actors to feel us behind them when they are at the keyboard and that requires us as often as possible to lay hands on people and lock them up. That requires tremendous cooperation from our partners around the world,” Comey said.
“Then second in order is to have people feel us metaphorically behind them. If we can’t lay hands on people, we’re trying to call out behavior to name it and to shame it, to deter it. And we think that actually cybercrimes and cyber intrusions of all kinds are deterrable. So if we can raise their perception of the cost, either in physically liberty or in terms of shame and diplomatic pain, we think we can change behavior.”
The program was sponsored by the ABA Standing Committee on Law and National Security and included a panel discussion with Marc Rotenberg, president and executive director of the Electronic Privacy Information Center; and Gilman Louie, founder and former CEO of In-Q-Tel. Committee Chair Harvey Rishikof served as the moderator for the panel.