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There is no ‘absolute privacy’ in America

9/3/17

On the heels of shocking revelations about the extent of government’s power to spy on Americans via the internet of things, FBI Director James Comey reminded an audience that there’s “no such thing as absolute privacy in America.”

FBI Director James Comey has warned citizens Wednesday that "absolute privacy" does not exist in the US and he argued in favour of weakening encryption technology to allow the FBI to access devices and assist them in their investigations.

His comments have raised concerns regarding FBI procedures as well as private industry cybersecurity.

Mr Comey noted during a Boston College conference that the FBI has been unable to open 43 per cent of the 2,800 devices obtained in various investigations due to encryption.

He came under fire during the 2016 election regarding his agency’s handling of the investigation into Hillary Clinton’s use of a private server for State Department emails.

His comments also come in the wake of President Trump’s tweets over the weekend which accused the Obama administration of illegally wiretapping Trump Tower during the election.

Robert Cattanach, a partner specialising in cybersecurity at the law firm Dorsey & Whitney and a former trial lawyer at the Department of Justice, told The Independent that “as a practical matter this [no absolute privacy] is a fair observation...by any tech savvy citizen."

Mr Cattanach said “the key word is ‘absolute.’”

He added that people were still entitled to a "reasonable" amount of privacy based on the Fifth Amendment in the US Constitution, therefore Mr Comey's concerns were not likely to have an impact on the way courts rule about privacy.

“It would be foolish to think that anything I said or did is fully private even through encrypted devices,” said Mr Cattanach.

Mr Comey also said that “reasonable expectation of privacy in our homes, in our cars, in our devices...is a vital part of being American,” but that a judge could compel anyone to testify about private communications.

However, Cindy Cohn, Executive Director of the Electronic Frontier Foundation, a San Francisco-based digital rights advocacy group, told The Independent that “the freedom to have a private conversation — free from the worry that a hostile government, a rogue government agent, or a competitor or a criminal others are listening — is central to a free society.”

Ms Cohn’s is concerned about Mr Comey’s comments because “there is nearly universal consensus from technologists that it’s impossible to build weaknesses or access mechanisms into technology that can only be used by the good guys and not by the bad.”

In other words, if Apple weakens security for the FBI to access more of the 2,800 devices, other world governments who do not have the same human rights and rule of law protections might also be able to access the same devices.

Both Ms Cohn and Mr Cattanach are concerned by Mr Comey’s comments regarding the impact on private sector businesses.

Though Mr Cattanach did not interpret Director Comey’s comments as having an underlying “agenda” to make it easier for the FBI to violate the "reasonable" expectation of privacy that Americans are afforded, he does feel that a company’s “trade secrets are much more easily obtained by competitors” if weakened cybersecurity measures are pushed forward.

Ms Cohn explained that “banning US companies from offering strong security” will send them abroad for a foreign product that is not governed by the US, which could undermine their cybersecurity protections.

Mr Comey did not address President Trump’s wiretapping accusations in his Boston College speech but confirmed he would finish the remaining six and a half years of his term at the helm of the FBI./.

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