FBI director James Comey has reiterated the need for online surveillance and joined calls for more tools for law enforcement agencies to do so.
In March 2014, he told RSA Conference 2014 in San Francisco that surveillance is necessary for effective law enforcement.
But, this week Comey told the Brookings Institution in Washington DC that, while technology has become the tool of choice for “some very dangerous people”, the law has not kept pace.
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He claimed law enforcement officers lack the legal tools to access the evidence they need to prosecute crime and prevent terrorism.
Trust in state and police
Comey echoed sentiments expressed just days before in Brussels, by Troels Oerting, the head of Europol’s European Cybercrime Centre.
The same trust in police and state should be applied in cyber space as in the real world, he told the ISSE 2014 security conference.
Oerting called for law enforcement officers to have the means to access the data they need to monitor and identify suspects.
He said that, although this is controversial in the post-Snowden era, if people do not trust the state and the police, they should get rid of them by voting for someone they do trust.
Oerting believes the acceptable balance many countries have struck, between security and freedom in the physical world, now needs to be extended to cyber space.
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FBI criticises privacy measures
Comey hit out at technology service providers for upsetting that balance by increasingly encrypting communications in the name of privacy.
He said data encryption such as that employed on Apple’s and Google’s latest mobile operating systems make it difficult for law enforcement officers to access critical data.
“I want people to understand that law enforcement needs to be able to access communications and information to bring people to justice.
“We do so pursuant to the rule of law, with clear guidance and strict oversight. But even with lawful authority, we may not be able to access the evidence and the information we need,” he said.
Similar arguments were used UK home secretary Theresa May in support of the proposed Communications Data Bill that was aimed at making it easier for security officers to spy on emails, phone calls and internet activity.
Calls to extend state surveillance
Privacy campaigners widely criticised the draft bill as an assault on civil liberties, and the process of turning it into law stalled after support was withdrawn by deputy prime minister Nick Clegg.
Comey called for laws that require telecommunication carriers and broadband providers to build interception capabilities into their networks for court-ordered surveillance be extended to include new forms of communication.
“Thousands of companies provide some form of communication service, and most are not required by statute to provide lawful intercept capabilities to law enforcement,” he said.
According to Comey, law enforcement organisations are not seeking to expand their authority to intercept communications, but are struggling to keep up with changing technology and to maintain their ability to collect the communications they are authorised to intercept.
“Encryption threatens to lead all of us to a very dark place,” he said, claiming it will have very serious consequences for law enforcement and national security agencies at all levels.
Private sector co-operation
Comey called for the assistance and co-operation from companies to comply with lawful court orders, so that criminals around the world cannot seek safe haven for lawless conduct.
He said there is also a need for a regulatory or legislative fix to create a level playing field, so that all communication service providers are held to the same standard and so that law enforcement agencies can continue to do their jobs.
Like Oerting, Comey called for open, public debate to find the right balance between freedom and security in an increasingly digitally-enabled world.
The UK government was widely criticised over the passing of the Data Retention and Investigatory Powers Act in July 2014 because of the lack of public consultation.
The legislation requires domestic and foreign internet and phone companies to store all communications data relating to UK citizens.
The controversial bill was fast-tracked after the prime minister struck a deal with Labour and the Liberal Democrats to support the process in exchange for a list of safeguards and undertakings.