At Senate Hearing, Comey Hints At Expanded NSL Powers And Encryption Backdoors

from the now-has-a-president-willing-to-cater-to-his-desires dept

James Comey testified in front of the Senate Judiciary Committee today where he faced an oddly-unified bipartisan group of senators irritated with the FBI (but for different reasons). Most senators took a large amount of the their time during the first round of questions to not actually ask questions, but to express their displeasure with the Clinton email investigation and the ongoing Trump-Russia investigation.

The opening statements varied depending on the party of the senator addressing James Comey. Comey had very few answers about various Trump-related investigations (which are still ongoing), but made the most of his opening statement by dodging the questions and making a sales pitch for the renewal of Section 702 -- the statute permitting the NSA's internet data/communications collection the FBI makes frequent use of.

According to Comey, the 702 collection is essential to national security. Possibly true. But not so essential that concerns about Fourth Amendment violations should be swept aside. This was only one of the sales pitches Comey managed to squeeze in during questioning.

He also touched on a couple of other issues worth noting. Both involve legislation. After pitching a clean Section 702 renewal, Comey spent some time talking around the subject of backdoor 702 searches, noting that "all courts" have found the FBI's secondhand domestic surveillance lawful… without specifying the only court to really reach this conclusion is the FISA Court. And this court also found the NSA had abused its collection repeatedly. This court also approved zero 702 applications in 2016 and the NSA itself has shut down part of its upstream collection because it kept grabbing too many communications from US persons.

This shutdown will affect the FBI's backdoor searches. Comey, of course, didn't refer to them as backdoor searches, but did make it clear the FBI would be ever so pleased if Section 702 was renewed with a minimum of legislator interference.

The FBI's own collection efforts were a concern to Comey as well. Comey continued his misrepresentation of the statutes governing what the FBI can collect with National Security Letters. According to the FBI director, the only thing standing between what the FBI can legally get with NSLs (subscriber info and billing records) and what it wants (a very long list of things, including web history and geolocation data) is a "typo." Not sure which part of the statute contains the typo, but Comey claimed to be able to channel the intent of legislators who passed it back in 1986.

Not that the lack of statutory authority has prevented the FBI from demanding more than it's supposed to get. An NSL published by Yahoo contained a much longer list of requested data than is permissible under the law. Comey expressed his desire to have Congress take another look at the statute and see if it doesn't agree with Comey's assessment.

The other legislative issue near and dear to Comey's heart was addressed a bit more obliquely, but managed to make it clear the current administration would be far more sympathetic to Comey's other backdoor plan. Both Sen. Orin Hatch and Sen. Dianne Feinstein spoke favorably about encryption backdoors. Comey noted the Obama Administration wasn't interested in passing bills containing encryption bans or backdoors, but the new team in the White House has possibly expressed an interest in doing just that.

The Obama administration was not in a position where they were seeking legislation. I don't know yet how President Trump intends to approach this. I know he spoke about it during the campaign, I know he cares about it, but it's premature for me to say.

There were a lot of things that Comey wouldn't say. Many things he wouldn't confirm or deny in an open hearing. But he let us know he's still pushing encryption legislation, even if he's opted for more of a soft sell in recent months.

Generally speaking, the hearing ended up being more about how the FBI plans to continue expanding its power and decreasing civil liberties. Comey wants a clean 702 reauth, even with the NSA shutting down part of the collection because it can't comply with the law otherwise. He wants legislators to hand him greater NSL powers, even though the FBI's history of NSL abuse is well-documented. And he still wants the government to solve his "going dark" problem, even though the problem has been greatly exaggerated and no amount of harder nerding is going to generate a safe, government-only backdoor in encryption.

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Filed Under: fbi, going dark, investigation, james comey, section 702, senate judiciary commitee