Finding the Balance We Need in Law and Life
Remarks as delivered.
Thank you for being here—not just for being part of the ABA, but for being in this room. If you’re in this room, you care about the rule of law. You share that. Even if you disagree with things the FBI does and says, you share that commitment to the rule of law with the FBI.
We recently re-wrote our mission statement to try to make it simpler and to better capture what the FBI does and what the FBI stands for. The mission statement is: Our mission is to protect the American people and uphold the Constitution of the United States. That second piece was very important to all of us to include, because it describes in that mission statement not only what we do, but how we aspire to do it. We do it in a way that’s consistent with what I believe is the spine of our organization, which is the rule of law.
There is a danger in our work that we will get so busy and so cut off from other voices that we can fall in love with the sound of our own voice. I think at the heart of the rule of law is constraint and oversight and pushing and testing from outside voices. Thank you for being those voices.
There is a reason that I keep under the glass on my desk a single-page document. I keep it on the right corner of my desk closest to where I sit. It’s a single-page document from October 1963, and it’s an application, so-called, from J. Edgar Hoover to the attorney general, Robert F. Kennedy, asking for permission to wiretap Martin Luther King, Jr. I say application “so-called” because it’s really without substance. It’s five sentences long, and it simply says, “There’s a Communist influence in the racial situation and so we need to be able to bug and wiretap Dr. King.” It’s without date limitation, it’s without place limitation, and it’s without any kind of oversight, except it’s a single page that’s sent to the attorney general. And the copy I have bears the attorney general’s signature. Then they were off, bugging and wiretapping King without limitation, without constraint, without oversight.
I keep it there in two senses of “there.” I keep it there on my desk because I want the entire organization to know that I have it there, and I keep it there as a reminder, not to pick on Bobby Kennedy, not to pick on J. Edgar Hoover, but as a reminder of the dangers of becoming unconstrained, of losing testing and pushing and oversight, losing the checks and balances that are at the heart of the framer’s design. That’s why I keep it there in one sense.
I keep it in that particular spot, because that’s the spot where every morning, when I’m in Washington, I review requests that we’re going to send to the Foreign Intelligence Surveillance Court asking for permission to bug or conduct searches in connection with our national security cases. To do that, the FBI Director has to personally certify to the application. Those applications, the reason I like that corner of my desk is, I sit them right there, and those applications are routinely—I have thin wrists—they’re routinely at least as thick as my thin wrist, usually thicker. It is a pain in the neck to get permission to wiretap or bug someone in the United States. That is a great thing—because in that thickness, in that pain in the neck, is constraint and oversight. So I keep that document there for two reasons.
What I want to do this afternoon is just share with you a couple thoughts about balance. I talked about the importance of constraint and oversight and testing and pushing, and I want to talk about one area where I think that is vital to all of us as Americans. And then I’m going to offer some advice about balance, especially in this time of the rise of the group that calls itself the Islamic State that desires to frighten people in extraordinary ways.
First, a balance that is more direct to our work. I’ve talked a lot in the last year and a half about the problem that the FBI calls Going Dark. What we mean by that is our increasing inability with lawful authority—with a search warrant or with a court order for interception of electronic communications—to execute on that order, to be able to execute on the search warrant, because the device we encounter is not susceptible of being unlocked, even by the manufacturer; or the communications where data moving in motion is strongly encrypted—even if we intercept it we can’t read it.
This is a shadow that’s falling across our work. I’ll give you an example of the size of the shadow. In the first 10 months of this fiscal year, our examiners received 5,000 or so devices from state and local law enforcement asking for our help, with a search warrant, to open those devices. About 650 of them we could not open. We did not have the technology. We can’t open them. They are a brick to us.
Those are cases unmade. That’s evidence unfound. That has a significant impact on our work and on 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, default encryption on devices—becomes a bigger feature of our life.
What to do about this is not for the FBI to say. I believe the FBI’s job is to tell you and tell the American people that we see a problem, and we see it in a way we believe we’ve never actually seen before as a country. I’m talking to a room full of lawyers, so I’ll be very brief about this. All of you understand the bargain at the heart of the United States of America that was struck 240 years ago. And the bargain, I describe, goes like this: Your stuff is private—unless, with appropriate authority and appropriate predication, the government needs to look at it. That’s been the bargain at the heart of ordered liberty in the United States for 240 years.
We have never had absolute privacy in this country. Our cars aren’t absolutely private, our safe deposit boxes aren’t absolutely private, our apartments, our houses, the contents of our minds are not absolutely private. Any one of us, in appropriate circumstances, can be compelled to say what we saw. Our communications with our lawyers, with our clergy, with our spouses, are not absolutely private. They can be pierced in the appropriate circumstance.
What we see with a proliferation, especially of default encryption on devices at rest, is, for the first time in American life, large swaths of our life absolutely private. Even I, when I hear those words, find it kind of seductive. I don’t want anybody looking at my stuff. I have an Instagram account with nine followers and they’re all related to me. I don’t want anybody but those nine followers looking at the pictures I post when I visit San Francisco or I get to go some other place. I love the idea.
But then I stop and say, “Wait a minute. We’ve never lived that way, actually.” We’ve never lived with large swaths of our life off-limits to judicial authority, where a judge’s orders were ineffective. That’s a different way to live. I would suggest to you that where we are now and where we are headed shatters the bargain that is at the heart of ordered liberty in this country. That is something we have to talk about.
As I said, I don’t think the FBI should tell people what to do. I think the FBI should sound the alarm. I don’t think companies, tech companies, 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? Maybe at the end of the day we say, “It’s too hard to do anything about it.” Or, “We think the benefits of privacy in this context outweigh the costs.” Okay. But a democracy should not drift to a place where all of a sudden people look up and say, “What do you mean—you have a search warrant, you have a court order—what do you mean you can’t? What do you mean you can’t?” I’m keen to foster a conversation in this country about that.
Now, there are other conversations going on in the country right now. I’ve heard there’s an election going on, and so this issue has fallen below public consciousness. And that’s okay, because I actually thought that this year would not be a great time to have this conversation. I thought this year is not a time in which we can, as a democracy, discuss the collision of two values, because that’s what this is.
I love encryption. I love it. I love it. It not only protects me personally, it makes the FBI’s job—a huge part of which is to protect the American people from theft and stalking and threatening and all kinds of bad things—it is a great thing for all of us and for public safety. I also love public safety, and being able to solve terrorism cases and pedophile cases and all manner of cases.
I see those two values, both of which I share, colliding into each other. I actually think everybody holds those two values. We may weigh them differently, but I’m a believer that there are no devils in this conversation. The tech companies are not evil, nor is the FBI. I believe we share the same values. I believe we weigh them differently, and the way to sort that through is to have a great, robust conversation.
What the FBI is doing this year is collecting data about how it’s impacting our work, so that next year we can have an informed conversation that a mature democracy should be able to have of what to do about it. Lots of folks say, “It’s impossible.” First of all, I don’t know what the “it” is that they’re talking about, but I’m a little bit skeptical of that answer. I sometimes say, with a little bit of a smile, to friends in the tech sector, “Thank goodness you didn’t listen when people 20 years ago told you what you dreamed of was impossible.” I’m not sure it’s been given the shot that it deserves. So we will spend this year collecting examples about how this affects our work. We will share them with the American people next year and try to foster a conversation.
Litigation is not the place to solve this problem. The San Bernardino litigation was necessary, but, in my view, counterproductive, in this sense. It was necessary because we had to get into that phone. It was counterproductive because it became a focus for emotion and passion that I think was making it hard. People were shouting tweets at each other or bumper stickers. It made it hard to have a complex conversation. I was very glad when litigation went away—because we got into the phone, which was the reason it was brought in the first place, and second, it removed that rallying point for a whole lot of passion and anger on both sides.
I hope that we return to this conversation. In the new year, we can have this conversation not questioning each other’s motives or patriotism, but instead arguing about values and weighting and what can be done about it. Thank you for participating in that conversation. It matters. Especially lawyers understand the importance of a robust adversarial conversation to reconcile difficult values. That’s the first thing about balance I want to share with you.
The second thing I want to share with you is slightly different, on the topic of balance. There is a lot of anxiety in the United States today connected to the threat of terrorism, and for reasons that I fully understand. The introduction mentioned San Bernardino, Orlando, Chattanooga—all the pain and fear inflicted on the American public by seeing these images and experiencing these terrible events up close. It ratchets up anxiety in extraordinary ways, in ways that I have never experienced before. Part of it is the images that we’re all able to access. We can experience Brussels or Paris or Nice or San Bernardino or Orlando immediately, incredibly closely, and constantly.
That was a capability we didn’t have 15 years ago at September 11. There weren’t tweets from the Twin Towers. There weren’t live video streams from the Twin Towers. There weren’t actually immediately available, intense images from the Twin Towers. Some of the terrible images we remember, poor innocent people jumping from the towers, were actually not available to us until some time later. This is very different today, because we’re all able to experience something in an up-close and intense way. That drives a spike of anxiety that is extraordinary. That is a real thing, and I think those of us in government need to understand it and respond to it.
Here’s one of the ways I’d like to respond to it, and I urge you to do this as well. When I became FBI Director, my children received training. It was a little depressing for kids to have to receive. They received countersurveillance training; they received training about how to think about awareness of your surroundings and how to think about fear. They were told there are four states of the world: red, orange, yellow, and white.
Red is a state of: You’re in a fight for your life. Hormones coursing through your body, stress hormones—unsustainable. You’re in a fight for your life. Orange is: You’re on the cusp of such a fight. Hormones are starting to course through you—also, as long-term manner, unsustainable, although we ask law enforcement in this country to live in that state far too often. White is a state of, as I describe it: Headphones on, texting on a New York City subway platform at midnight. It is a state of utter unawareness of what’s going on around you. My children were taught, and still are—if my kids were here, they would groan if I say this—I’m forever saying to them, “Live in yellow. Live in yellow.”
Yellow is a state of awareness, but not disabling fear. It’s an awareness of your surroundings, and an understanding that two seconds often is the difference between life and death. This is what we train people, especially when we send them overseas on deployments. You have two seconds. It’s actually quite a long time, if you’re living in yellow—one-one thousand, two-one thousand—to move, to duck, to go someplace. But if you’re living in white, those two seconds never come to you.
My urging to my children, actually to my fellow Americans, is: Please don’t let these savages drive you into the state that they aspire to drive you to, which is orange or red, a disabling state of fear. Instead, use the knowledge that there really is evil out there and channel it into a healthy awareness—resisting disabling fear, but also resisting a state of obliviousness and lack of awareness. I urge my kids, “When you go into a place, look around. See where the exits are. If something happened, where would you go? What would you do? And then, live your life.”
It is very difficult with disabling fear pushed at us, pushed at us 24 hours a day, without that framework, to find a healthy place of balance. My ask to the American people is: Please don’t give them what they want. Live in a state of yellow, and let those of us who are paid to do this job live in those higher states of stress and drive as hard as we possibly can to interrupt the terrorist threat in the United States.
Those are my two things I wanted to say to you about balance. Let me close with a word of gratitude, and then we’ll have our conversation.
I meant what I said about the need for voices to push and to question authority. Voices that are not screaming, voices that are not distorted, but voices that are disciplined, thoughtful, and firm, is the way we get better. The FBI is an extraordinary organization—but we are not good enough, in my view. There are always ways that we can improve. And one of the ways we improve is people outside the organization saying, “Why are you doing that? Why does that make sense? Why shouldn’t you do something a different way?” That’s the path to improvement. That is actually embracing the design of our founders and forcing constraint and oversight into all of our lives.
Thank you for being here today. I look forward to our conversation.