Principal Associate Deputy Attorney General Marshall Miller Delivers Remarks at the Global Investigations Review Annual Meeting
Remarks as Prepared for Delivery
Good morning, Chairman [Chuck] Grassley, Ranking Member [Patrick] Leahy and members of the Judiciary Committee. Thank you for the opportunity to testify today about the information and evidence-collection problem we commonly describe as “going dark.”
Twenty-five years ago, I started my Justice Department career as a line prosecutor in Atlanta. I worked every kind of case you can imagine—from guns and drugs to financial fraud and terrorism.
During that time, the world has changed in remarkable ways. Technological innovations have revolutionized the ways we communicate with colleagues and loved ones. And increasingly sophisticated means of encryption have helped to ensure that these communications remain private. For many reasons, these have been good developments—and ones that the Department of Justice embraces.
But it’s important that we do not let these technological innovations undermine our ability to protect the community from significant national security and public safety challenges. The Fourth Amendment of the Constitution and our criminal justice system provides a well-developed framework for a careful balance between privacy rights and public safety by adhering to the basic principle of judicial authorization established by probable cause and determined by a neutral judge. that framework governs searches of all our communications, regardless of whether they are by private letters or smartphone [messages], and regardless of whether we are wiretapping a landline or intercepting instant messages sent over the latest applications. This framework has protected the interests that we all have in safety and privacy for many years.
But recent technological innovations threaten that careful balance. Although we still have the statutory authorities that congress provided to protect the community, like the Wiretap Act and FISA (the Foreign Intelligence Service Act of 1978)—increasingly, we’re finding that even when we have the authority to search certain types of digital communications, we can’t get the information we need because the encryption has been designed so that the information is only available to the user and the providers are unable to comply with the court order or warrant. The need and justification for the evidence has been established—and yet that evidence cannot be accessed. Crucial information becomes, in effect, “warrant proof.”
Because of this, we are creating safe zones where dangerous criminals and terrorists can operate and avoid detection. And it impacts us in two ways: we can’t get access to information that is stored on someone’s smartphone, like a child pornographer’s photographs or a gang member’s saved text messages, known as data at rest. And we also can no longer effectuate wiretap orders to intercept certain communications as they happen, like ISIL members plotting to carry out an attack in the U.S., or a kidnapper communicating with a coconspirator. This is known as data in motion. These technological changes come with real national security and public safety costs.
In the six short months that I’ve served as Deputy Attorney General, I’ve seen the threat picture from ISIL change. ISIL currently communicates on Twitter, sending communications to thousands of would-be followers right here in our country. When someone responds and the conversations begin, they are then directed to encrypted platforms for further communication. And even with a court order, we can’t see those communications. This is a serious threat and our inability to access these communications, with valid court orders, is a real national security and public safety problem.
The current public debate about how to strike the careful balance between privacy rights and public safety has at times been a challenging and highly charged discussion. I believe that we have to protect the privacy of our citizens and the safety of the Internet. But those interests are not absolute. And they have to be balanced against the risks we face from creating warrant-proof zones of communication.
There are no easy answers to this dilemma, and reasonable people can disagree on where that balance should be struck. I don’t think that we advance the analysis to vilify those who prioritize privacy for their customers. But from where I sit, as the Deputy Attorney General, I believe that the balance must be struck in such a way that allows us to continue to enforce court orders to obtain the critical information we need to combat crime and national security threats. But regardless of how one believes the balance should be struck, we can all agree that we will need ongoing honest and informed public debate about how best to protect both our liberty and our security.
Thank you again for giving us an opportunity to highlight this growing threat to public safety. We must find a solution to this pressing problem and soon. The government’s ability to protect our nation from our most pressing threats—both foreign and domestic—depends on it.
I look forward to answering your questions.