Jim Comey May Not Be a Maniac, But He Has a Poor Understanding of Evidence

Apparently, Jim Comey wasn’t happy with his stenographer, Ben Wittes. After having Ben write up Comey’s concerns on encryption last week, Comey has written his own explanation of his concerns about encryption at Ben’s blog.

Here are the 3 key paragraphs.

2. There are many benefits to this. Universal strong encryption will protect all of us—our innovation, our private thoughts, and so many other things of value—from thieves of all kinds. We will all have lock-boxes in our lives that only we can open and in which we can store all that is valuable to us. There are lots of good things about this.

3. There are many costs to this. Public safety in the United States has relied for a couple centuries on the ability of the government, with predication, to obtain permission from a court to access the “papers and effects” and communications of Americans. The Fourth Amendment reflects a trade-off inherent in ordered liberty: To protect the public, the government sometimes needs to be able to see an individual’s stuff, but only under appropriate circumstances and with appropriate oversight.

4. These two things are in tension in many contexts. When the government’s ability—with appropriate predication and court oversight—to see an individual’s stuff goes away, it will affect public safety. That tension is vividly illustrated by the current ISIL threat, which involves ISIL operators in Syria recruiting and tasking dozens of troubled Americans to kill people, a process that increasingly takes part through mobile messaging apps that are end-to-end encrypted, communications that may not be intercepted, despite judicial orders under the Fourth Amendment. But the tension could as well be illustrated in criminal investigations all over the country. There is simply no doubt that bad people can communicate with impunity in a world of universal strong encryption.

Comey admits encryption lets people lock stuff away from criminals (and supports innovation), and admits “there are lots of good things about this.” He then introduces “costs,” without enumerating them. In a paragraph purportedly explaining how the “good things” and “costs” are in tension, he raises the ISIL threat as well as — as an afterthought — “criminal investigations all over the country.”

Without providing any evidence about that tension.

As I have noted, the recent wiretap report raises real questions, at least about the “criminal investigations all over the country,” which in fact are not being thwarted. On that ledger, at least, there is no question: the “good things” (AKA, benefits) are huge, especially with the million or so iPhones that get stolen every year, and the “costs” are negligible, just a few wiretaps law enforcement can’t break.

I conceded we can’t make the same conclusions about FISA orders — or the FBI generally — because Comey’s agency’s record keeping is so bad (which is consistent with all the rest of its record-keeping). It may well be that we’re not able to access ISIL communications with US recruits because of encryption, but simply invoking the existence of ISIL using end-to-end encrypted mobile messaging apps is not evidence (especially because so much evidence indicates that sloppy end-user behavior makes it possible for FBI to crack this).

Especially after the FBI’s 0-for-40 record about making claims about terrorists since 9/11.

It may be that the FBI is facing increasing problems tracking ISIL. It may even be — though I’m skeptical — that those problems would outweigh the value of making stealing iPhones less useful.

But even as he calls for a real debate, Comey offers not one bit of real evidence to counter the crappy FBI reporting in the official reports to suggest this is not more FBI fearmongering.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

4 replies
  1. Owen says:

    What an inane nothing article. He thinks that encryption is good, except when it’s not. It’s great for the public, except when it harms the public. The Fourth Amendment reflects a trade-off between public safety and privacy, and he is the one who knows what the appropriate trade-off is.

    And then he buries the real disagreement that has been going on throughout this whole administration as if it’s just a pointless aside – “the government sometimes needs to be able to see an individual’s stuff, but only under appropriate circumstances and with appropriate oversight.” What are appropriate circumstances and oversight? Because, over the past decade or so, I’ve only seen Comey and the FBI trying again and again to evade any competent oversight (with great success). Maybe he believes that the “appropriate” level of oversight is “none.”

    Why does Lawfare post these awful PR articles?

  2. liberalrob says:

    Why does Lawfare post these awful PR articles?

    Because Lawfare is an awful website run by the unimpressive Ben Wittes?

    Maybe he believes that the “appropriate” level of oversight is “none.”

    Oh, perish the thought, he’s foursquare behind the Fourth Amendment. He just can’t understand why the public won’t trust secret courts issuing secret warrants to enforce secret laws.

    There is simply no doubt that bad people can communicate with impunity in a world of universal strong encryption.

    There is also simply no doubt that bad people can get guns to commit crimes with virtual impunity; yet it doesn’t seem to be a problem to argue that the answer to bad people with guns is more people with guns. Bad people aren’t bad people until they actually commit a crime. This concept seems difficult to grasp.

    I still believe it’s all down to CYA for 9/11. “Don’t blame us if 9/11 happens again, we told you the only way to prevent it was to watch everyone everywhere all the time!”

  3. jerryy says:

    .
    Here you go Jim Comey:
    .
    Rqh li eb odqg, wzr li eb vhd. Vploh, brx duh rq Fdqglg Fdphud.
    .
    That is an example using the oldest encryption scheme publicly known; the Caesar cipher, named for Julius “Beware the Ides of March” Caesar… the first person to use encryption. Yup, it has been used since those ancient times.
    .
    Jim Comey would issue warrants for all of the founding fathers being as how they were indeed ‘the bad guys’.
    .
    Just for fun, Jim, try explaining this one:
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    http://www.theguardian.com/technology/2015/jul/06/hacking-team-hacked-firm-sold-spying-tools-to-repressive-regimes-documents-claim
    .

  4. edge says:

    “Communicate with impunity”?! Oh noes! Are they visiting family with impunity too? What next, eating tacos? There should be punity for everything they do!

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