Encryption Tightrope: Balancing Americans’ Security and Privacy
Statement for the Record
Good morning, Chairman Goodlatte, Ranking Member Conyers, and members of the committee. Thank you for the opportunity to appear before you today to discuss the challenges to public safety and national security that have eroded our ability to obtain electronic information and evidence pursuant to a court order or warrant.
In recent years, new methods of electronic communication have transformed our society, most visibly by enabling ubiquitous digital communications and facilitating broad e-commerce. As such, it is important for our global economy and our national security to have strong encryption standards. The development and robust adoption of strong encryption is a key tool to secure commerce and trade, safeguard private information, promote free expression and association, and strengthen cyber security. We are on the frontlines of the fight against cyber crime, and we know first-hand the damage that can be caused by those who exploit vulnerable and insecure systems. We support and encourage the use of secure networks to prevent cyber threats to our critical national infrastructure, our intellectual property, and our data so as to promote our overall safety.
American citizens care deeply about privacy, and rightly so. Many companies have been responding to a market demand for products and services that protect the privacy and security of their customers. This has generated positive innovation that has been crucial to the digital economy. We, too, care about these important principles. Indeed, it is our obligation to uphold civil liberties, including the right to privacy.
We have always respected the fundamental right of people to engage in private communications, regardless of the medium or technology. Whether it is instant messages, texts, or old-fashioned letters, citizens have the right to communicate with one another in private—without unauthorized government surveillance—not simply because the Constitution demands it, but because the free flow of information is vital to a thriving democracy.
The benefits of our increasingly digital lives, however, have been accompanied by new dangers, and we have been forced to consider how criminals and terrorists might use advances in technology to their advantage. For example, malicious actors can take advantage of the Internet to covertly plot violent robberies, murders, and kidnappings; sex offenders can establish virtual communities to buy, sell, and encourage the creation of new depictions of horrific sexual abuse of children; and individuals, organized criminal networks, and nation-states can exploit weaknesses in our cyber-defenses to steal our sensitive, personal information. Investigating and prosecuting these offenders is a core responsibility and priority of the Department of Justice. As national security and criminal threats continue to evolve, the Department has worked hard to stay ahead of changing threats and changing technology.
We must ensure both the fundamental right of people to engage in private communications as well as the protection of the public. One of the bedrock principles upon which we rely to guide us is the principle of judicial authorization: that if an independent judge finds reason to believe that certain private communications contain evidence of a crime, then the government can conduct a limited search for that evidence. For example, by having a neutral arbiter—the judge—evaluate whether the government’s evidence satisfies the appropriate standard, we have been able to protect the public and safeguard citizens’ constitutional rights.
The more we as a society rely on electronic devices to communicate and store information, the more likely it is that information that was once found in filing cabinets, letters, and photo albums will now be stored only in electronic form. We have seen case after case—from homicides and kidnappings, to drug trafficking, financial fraud, and child exploitation—where critical evidence came from smart phones, computers, and online communications.
When changes in technology hinder law enforcement’s ability to exercise investigative tools and follow critical leads, we may not be able to root out the child predators hiding in the shadows of the Internet, or find and arrest violent criminals who are targeting our neighborhoods. We may not be able to identify and stop terrorists who are using social media to recruit, plan, and execute an attack in our country. We may not be able to recover critical information from a device that belongs to a victim who cannot provide us with the password, especially when time is of the essence. These are not just theoretical concerns.
We continue to identify individuals who seek to join the ranks of foreign fighters traveling in support of the Islamic State of Iraq and the Levant, commonly known as ISIL, and also homegrown violent extremists who may aspire to attack the United States from within. These threats remain among the highest priorities for the FBI, and the United States government as a whole.
Of course, encryption is not the only technology terrorists and criminals use to further their ends. Terrorist groups, such as ISIL, use the Internet to great effect. With the widespread horizontal distribution of social media, terrorists can spot, assess, recruit, and radicalize vulnerable individuals of all ages in the United States either to travel or to conduct a homeland attack. As a result, foreign terrorist organizations now have direct access into the United States like never before. Some of these conversations occur in publicly accessed social networking sites, but others take place via private messaging platforms. These encrypted direct messaging platforms are tremendously problematic when used by terrorist plotters.
We are seeing more and more cases where we believe significant evidence resides on a phone, a tablet, or a laptop—evidence that may be the difference between an offender being convicted or acquitted. If we cannot access this evidence, it will have ongoing, significant impacts on our ability to identify, stop, and prosecute these offenders.
We would like to emphasize that the Going Dark problem is, at base, one of technological choices and capability. We are not asking to expand the government’s surveillance authority, but rather we are asking to ensure that we can continue to obtain electronic information and evidence pursuant to the legal authority that Congress has provided to us to keep America safe.
The rules for the collection of the content of communications in order to protect public safety have been worked out by Congress and the courts over decades. Our country is justifiably proud of the strong privacy protections established by the Constitution and by Congress, and the FBI fully complies with those protections. The core question is this: Once all of the requirements and safeguards of the laws and the Constitution have been met, are we comfortable with technical design decisions that result in barriers to obtaining evidence of a crime?
The debate so far has been a challenging and highly charged discussion, but one that we believe is essential to have. This includes a productive and meaningful dialogue on how encryption as currently implemented poses real barriers to law enforcement’s ability to seek information in specific cases of possible national security threat. Mr. Chairman, we believe that the challenges posed by the Going Dark problem are grave, growing, and extremely complex. At the outset, it is important to emphasize that we believe that there is no one-size-fits-all strategy that will ensure progress. All involved must continue to ensure that citizens’ legitimate privacy interests can be effectively secured, including through robust technology and legal protections. We must continue the current public debate about how best to ensure that privacy and security can co-exist and reinforce each other, and continue to consider all of the legitimate concerns at play, including ensuring that law enforcement can keep us safe.