Why Americans expect privacy: An open letter to FBI Director James Comey

Balancing liberty and security is one of the great challenges of this century. In this open article to FBI Director James Comey, ZDNet Government's David Gewirtz explain why Americans demand both.
Written by David Gewirtz, Senior Contributing Editor

Dear Director Comey:

There is no doubt there are bad people in this world. All one has to do is turn on the evening news or open a Web browser. Last week's shocker was the beheading of Colleen Hufford in an Oklahoma food processing plant.

This follows the worldwide news of the beheadings of James Foley, Steven Sotloff and David Haines by the radical Islamic State terrorist group.

Of course, beheadings are only one form of deranged, twisted, and criminal behavior mankind is capable of. One of the curses of our humanity is that we can be both amazingly wonderful and amazingly horrible.

Civilization and society were created, in large part, to protect the wonderful from the horrible. This is why we have law enforcement and national security. There are bad people out there, and some good people dedicated their careers and their lives to protecting the rest of us from the evils men do.

Unfortunately, security comes with a price, a bargain, a trade-off. Those who seek to protect us from bad things have to get ahead of the bad things in order to spring into action. As Ben Franklin said, "Distrust and caution are the parents of security."

Scientists describe "chaotic dynamics" as the state of mostly unpredictable linked events sensitive to various initial conditions. In other words, we're all running around, doing our own thing, expecting a level of freedom and security, and living our lives.

Taken from the macro level, looking at the nation as a whole, law enforcement and our national security infrastructure has to somehow drill through all those chaotic dynamics and find the next terrorist cell and prevent it from bombing a marathon, destroying a building, blowing up a bridge, poisoning a water supply, or any of the other nightmare scenarios that keep security professionals up at night, wracked with worry.

Technology provides a way to drill through that chaos. Given a highly communicative population, most now equipped with digital nodes attached to their bodies (or stuck in their pockets), combined with the ability to store, scan, process, and retrieve vasts amounts of data in near real-time, our national security agencies have the technical capability to find a needle in a haystack -- as long as they're allowed to scan the entire haystack.

This is where wiretaps and metadata and PRISM and the NSA all come in. Up until the events of September 11, 2001, most law enforcement was generally content with catching criminals after they'd committed a crime. Oh, sure, if they knew of a potential murder, law enforcement would do its best to prevent it, but the real focus was collecting evidence after a crime, tracking down the bad guy, and creating a legal case. Your basic Law & Order episode, on a national scale.

But then the planes hit and we all asked, "How could this have happened?" While there were certainly clues about the attack ahead of time, our national security command and national command authority did not react in time to prevent the attacks. Thousands died.

And the game changed. Now, we wanted to get ahead of the attacks. We wanted to be sure we could predict them, see them coming, and stop them before they happened. We couldn't just gather evidence from a crime scene, we had to get all Minority Report on the country and somehow predict future crimes, or at least future terror activities.

The result was taking the signals analysis and data munching capabilities of the NSA and setting it loose to scan as much information as it was legally allowed to scan. We've all heard the stories since Edward Snowden stole his treasure trove and dumped it into the hungry arms of a desperate-for-a-hot-story press.

So now we have claims of American national security agencies spying on Americans. In a very few cases, this is justifiable, and that's where the FISA courts come in. But added to those cases are the super-secret National Security Letters, where ISPs have to share information but can't tell anyone, and all of the information requests sent to our biggest information hoarders: Google, Facebook, Microsoft, Apple, and so on.

All of this is pretty much old news. We've been talking about the NSA and Snowden for more than a year now. What is not old news is how Americans are reacting to all of this.

Put simply, most folks are pissed.

That's because most Americans believe in the whole freedom thing. They believe in privacy. They believe in protection from unreasonable search and seizure. These values have been inculcated in all of us since our diaper days. To many people, America IS freedom and privacy.

Or, at least, it should be.

Americans so believe that these rights are inalienable -- and are so used to practicing their freedoms -- that when it seems like such rights are being abrogated, they simply engineer around the problem.

That's why Silent Circle built the Blackphone and why Apple and Google are starting to build encrypted infrastructure where they are algorithmically incapable of providing customer data to law enforcement.

It's not that Americans don't want to catch the terrorists. They do. Americans, absent the tempering hand of the criminal justice system, would probably catch, hang, tar, feather, cook, and fling terrorists into the ocean. Americans do not like being "effed" with by anyone who might harsh our buzz or kill our families.

But Americans are also realists and we know full well our government is made up of... flawed people, to put it kindly. Yes, our government servants are -- in the main -- exceptionally hard and dedicated workers. But there are others who flaunt the system and play at the fringes of what's right and wrong.

We are not that trusting. We don't trust that the government won't scan our metadata or our conversations and send the information to the IRS, to insurance companies, to over-zealous local police forces.

We don't trust that our leaders won't use these powers for political gain, like the case where the IRS supposedly treated potential nonprofits inappropriately and with some degree of prejudice.

We don't trust that allowing digital eavesdropping to protect against terrorism won't open the doors to allowing digital eavesdropping to collect an errant car payment or call down stormtroopers just because a family member downloaded the wrong music track.

And so, Americans want their privacy. Americans demand their privacy. If the government is going to put that precious right on the chopping block, Americans will take it back.

Outrage has fueled changes in product and service offerings by the phone makers. Apple and Google have started modifying their hardware (or hardware reference models in Google's case) to create devices that can't be tapped and where data can't be turned over to law enforcement, because that data has been rendered unreadable from end-to-end.

There is a disconnect, however, and that's why I've written this article. Some of our national security leaders, so worried on our behalf about our security, have missed the other side of the issue: American's sense of right and trust.

Director Comey, this was evident in a recent statement you made about Apple's and Google's attempts to build systems that thwart law enforcement observation. As reported in HuffPo, you stated:

"I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone's closet or their smart phone. The notion that someone would market a closet that could never be opened — even if it involves a case involving a child kidnapper and a court order — to me does not make any sense."

Of course it makes sense. The notion that you don't understand the motivation to build in this privacy itself makes little sense — unless you suffer from that peculiar sort of tunnel vision Washington insiders get when they live in the bubble for too long.

Look, I've gone on record often enough outlining why our national security apparatus needs to monitor signals intelligence and the challenge of stopping another Boston marathon bomber or another 9/11. And, as a proud member of the FBI's Infragard program, you know I'm dedicated to protecting America's infrastructure.

But we have to be capable of holding two opposing concepts in our minds at once. On the one hand, we need surveillance and security to protect our citizens. On the other hand, we're America in large part because we distrust and protect ourselves from surveillance and unreasonable invasions of privacy.

You, Director Comey, of all people, should understand this. You were the Justice Department official who stood fast against domestic surveillance back in 2004 when then Attorney General John Ashcroft was in the hospital. It was one of the most politically brave actions we've ever seen coming from a career Washington bureaucrat.

Serving America requires meeting both challenges. This is not easy. As Thomas Jefferson said, "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."

This stuff is in our DNA. It is incumbent upon our leaders to understand and handle the balancing act freedom and security require. As JFK said in another context, we do these things, "not because they are easy, but because they are hard."

If anything, this is going to be one of the biggest challenges and biggest accomplishments of this century. In order to protect America from terrorists, we must protect all of America, not just our people and our infrastructure, but our ideals. If we don't balance freedom and security, if we don't understand why Americans demand privacy, then we're giving up some of our essential nature, perhaps the essential nature of what makes America truly American.

Director Comey, I'll leave you with one final thought. Americans are very, very good at solving problems. Doing what is hard isn't really hard for us. Balancing liberty and security is our thing. It's what we do. We are America.

P.S. I fully understand the grace and uniqueness of America. Here, we have a place where columnists like me can speak truth to power in articles like this with no fear of reprisal. Many of our international friends don't quite understand all the freedoms we Americans take so for granted, but like the one that lets me write this article and speak out, all our freedoms must be protected so this amazing, great, and complex nation can continue to be the beacon of light it has so often been over the years.

By the way, I'm doing more updates on Twitter and Facebook than ever before. Be sure to follow me on Twitter at @DavidGewirtz and on Facebook at Facebook.com/DavidGewirtz.

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