FBI Director Comey complained about the problem of people, “going dark,” in a speech before the Brookings Institution on October 16, 2014.

He explained, “the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem. We call it ‘Going Dark,’ and what it means is this: Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.”

At the risk of being guilty of post-mortem equine flagellation, I challenge the concept of “going dark,” or as one could call it, “protecting privacy.”

In his speech, Director Comey longs for the good old days when you got a court order to tap one phone from one provider, installed the wiretap, and you were on your way.

The Director complains, “Today, there are countless providers, countless networks, and countless means of communicating. We have laptops, smartphones, and tablets. We take them to work and to school, from the soccer field to Starbucks, over many networks, using any number of apps. And so do those conspiring to harm us. They use the same devices, the same networks, and the same apps to make plans, to target victims, and to cover up what they’re doing. And that makes it tough for us to keep up.”

So wait; the FBI is complaining that criminals (and others) now create a massive amount of data, with a massive amount of personal information that is readily available through dozens or hundreds of sources, and is retained for hours, days, weeks, months or years. And the data paints an intimate portrait of everything someone does, everything they read, everything they listen to, what they buy, how they pay, and where they are when they do these things?

Talk about the law not keeping up with technology!  In 2014, law enforcement is faced with a treasure trove of intimate personal information compared to what used to happen.

That’s the funny thing about memory — we remember the past and idealize it.  Director Comey’s “good ‘ol days” simply didn’t exist.  Pick a year.  Let’s say 1967 — the year the Supreme Court issued its landmark privacy case Katz v. United States.

Ah, the good old days.  LBJ was President, J. Edgar Hoover was FBI Director, and he was wiretapping people like Abby Hoffman and Martin Luther King, Jr. I know.  I listened to the wiretaps.

To do a wiretap, you would have to attach alligator clips to the switch box, (or get Ma Bell to do that for you) and have a team of agents in a room around the clock listening to someone’s telephone calls.  It was expensive, time consuming, labor intensive, and reserved only for the most significant cases.

If you wanted to know what someone was talking about, you could install a recording device in their house, or get a Court ordered “mail cover” to see who was writing to whom.  It was slow and laborious.  If you wanted to track where someone was, you put a tail on them, and a couple of guys in dark suits and skinny ties followed them around for a few days or a few weeks.

Aside from infiltrating a few black churches and acting as agent provocateur for commies and leftists, it’s hard to imagine this as being the sort-of high water mark for privacy.

Now the FBI can get access to so much more data.  Tens of thousands of cameras follow up everywhere we go.  Traffic cameras and license plate readers track our movements.

Cell towers and “stingray” type devices capture every phone call, every text message, every chat, and every conversation.  Metadata reveals our settings, activity, history, and personal information.  The FBI can turn on a webcam in our bedroom, capture every keystroke on our computer, iPad or phone, turn our phone into a recording device, send drones to track our movements, film into our bedrooms or living rooms from miles away, and compel companies to not only collect but retain data just in case the FBI wants it later.

With the Internet of Things, our watches, appliances, clothing, shoes, and devices will all create data streams accessible to the FBI.

It’s really hard to wax poetic about how hard this is making life for law enforcement.  They can remotely peer into moving trucks, sniff for “contraband” (or cash) in closed containers, and reconstruct virtually every aspect of everyone’s life.

Director Comey complains: “Thousands of companies provide some form of communication service, and most are not required by [the Communications Assistance to Law Enforcement Act or CALEA] to provide lawful intercept capabilities to law enforcement. What this means is that an order from a judge to monitor a suspect’s communication may amount to nothing more than a piece of paper. Some companies fail to comply with the court order. Some can’t comply, because they have not developed interception capabilities.”

Hate to break it to you.  It’s not their job.  And it never was.

The phone company’s job is to connect telephone calls.  That’s it.  Period.  End of story. They were never designed to act as agents of cops, or to develop a surveillance infrastructure.  They connect phone calls.  If you want a record of the call, and they happen to have it, a court can compel them to produce it.

That’s if they have made a business decision to keep that record.  And failing to create that capacity is not “going dark.”  If a bookstore or library doesn’t have a camera capturing the images of people coming and going, this can frustrate a criminal investigation.

But the bookstore or library isn’t “going dark.”  And if they fail to keep a record of the books purchased or borrowed by specific people, again, they aren’t “going dark.”  In fact, most phone toll records (records of calls made by landline phones) are no longer necessary for billing purposes, and created and maintained mostly for law enforcement purposes.

If you want to tap a phone call, and have a court order, you are welcome to try.  Be my guest.  Here, let me unlock the panel for you.  I’ll even show you where the alligator clips go.  But I am not going to design my communications network for your benefit.  I have shareholders.  And customers.  Let’s each of us do our own jobs.

We could pass a law requiring every webcam to be turned on all the time, to create a database that could be accessed with a court order.  We don’t.

With respect to Apple’s (and Google’s) intent to allow people to encrypt their phones by default, Director Comey also notes that “if the bad guys don’t back up their phones routinely, or if they opt out of uploading to the cloud, the data will only be found on the encrypted devices themselves.

And it is people most worried about what’s on the phone who will be most likely to avoid the cloud and to make sure that law enforcement cannot access incriminating data.”

That’s true — assuming they never make phone calls, send messages, use apps, or access anything on the Internet.  Or download anything onto their phones.  Or upload anything from their phones.  Or install apps.  Or install music.  Or install videos.  Or share anything with anyone.

If you do any of these things, there will be a record of it somewhere OTHER than on your phone. Not all in one place, but there will be a record.  Ben Franklin once said that two people can keep a secret provided one of them is dead.  As soon as you use your phone to communicate anything with anyone (including with your own computer) you create a record that can be discovered.

Director Comey makes a few other observations.  First, he notes that “Encryption isn’t just a technical feature; it’s a marketing pitch.”  Translation — strong encryption is what enables U.S. companies to sell products and services. Weakened encryption destroys this ability.

He also notes that it is “unlikely” that a person could be compelled to decrypt the contents of their own phone.  Damn that pesky Constitution.  If only we could find a clever way around it.

I want law enforcement to do its job.  I really do.  Lives depend on it.  There are things that make this more difficult.  Like the First Amendment.  The Fifth Amendment.  The Sixth Amendment.  The Eighth Amendment.  And, of course, the Fourth Amendment.

Oh, and things like Attorney-client privilege, priest-penitent privilege, doctor patient privilege, and other privacy enhancing laws and policies.  There’s data that’s not collected by companies that would be helpful to cops.  Data that’s not retained, even though it could help cops.  Data that is stored in a place that’s inconvenient or inaccessible to US law enforcement.

People who speak languages not easily understood by cops.  People who meet in places that the cops can’t easily surveil.  When asked about the mail fraud statute, J. Edgar Hoover once remarked words to the effect that he wanted every American to live their lives as if there was an FBI agent behind every mailbox.   It might be a safer world, but I’m not sure it’s one I would want to live in for very long.

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