Comey: Americans have never had absolute privacy

James Comey has thrust himself into America’s conversation about the security of electronic communications in a highly visible way lately. (Nominations for the Most Obvious Statement of 2016 Award are now open and I could use your support.) At least for conservatives, Comey has won high, if limited praise for rooting out all sorts of information from Hillary Clinton’s private bathroom email server, but there’s no escaping some of the other conversations which these events bump into. When it comes to people’s electronic devices – phones, tablets, laptops – the government isn’t always so successful in recovering data when they’re investigating crimes. That’s because of the incredible levels of encryption now available to the average citizen. Should the government be able to take a peek at your phone if they suspect you are up to no good? Even if they have a warrant? Apple clearly doesn’t think so, but Comey insists that such encryption amounts to “absolute privacy” and that’s not something which was ever expected or protected. (Next Gov)

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.”

I’ve written about this before and gotten no end of grief from libertarians and other segments of the political battlefield which are generally distrustful of the government. That little incident in San Bernardino really clarified my thinking, however. If you have the phone of someone who you already know carried out a terrorist attack and that device may contain data which holds even a chance of stopping future attacks, how on Earth are we to justify not allowing law enforcement to look into it?

And after arriving at that conclusion, I’m forced to ask if such limits to privacy have to be exclusive to horrific terror events. Investigating crimes is what law enforcement is supposed to do. If they had probable cause to believe you were involved in some serious crime and convinced a judge of this to the point where they obtained a warrant, they could come into your private space and being sorting through your papers to their heart’s content. It’s spelled out right in the Constitution. So if they can go that far, what’s so special about the electronic “papers” on your phone? Nothing in my opinion.

Encryption is a valuable tool which can hopefully protect you from hackers and identity thieves, but there needs to be a way for that data to be accessed by law enforcement when they meet the constitutional bar for accessing your private data. Their overall goal is not to “get you” but to protect you from the other people in the room who seek to do us harm. If that path is closed off, we run that risk of a growing portion of the room we protect going dark. Well said by Comey and very true, particularly given the threats we face in today’s world.