back to article FBI boss: 'Memories are not absolutely private in America'

FBI director James Comey has told a cybersecurity conference that any communications – be it with your spouse, your priest, or your lawyer – and any of your memories are up for grabs should a court order it. Speaking at the Boston Cyber Security Summit, Comey said that America's founding fathers had set down that there is a …


  1. John Smith 19 Gold badge

    A real policeman once said

    "Police work is only ever easy in a police state."

    Comey (who is a political appointee) wants an easy life.

    F**k him.

    1. The Man Who Fell To Earth Silver badge

      Re: A real policeman once said

      And Comey is dead wrong. In the US, one of the first things every law student learns is that a witness who does not want to testify can always say "I don't recall."

      1. Primus Secundus Tertius

        Re: A real policeman once said

        @man who fell...

        Such a witness can then be branded as unreliable by lawyers for the other side, thus weakening somebody's case. Actions or inactions have consequences.

        We live in organised societies that are more then just a bunch of selfish individuals. So individuals do not have absolute freedom. In common law states - Britain and USA - there is a common law duty to assist in mantaining law and order.

        1. The Man Who Fell To Earth Silver badge

          Re: A real policeman once said

          @ Primus

          I've been in enough courtrooms to know that a witnesses incentives don't necessarily align with either side all of the time. While a witness (in the US) can take the 5th claiming the right not to self-incriminate, there's a whole boatload of witness questions where the 5th is clearly not applicable yet a witness might not want to answer. The only way out is to say they don't recall, as no one can prove they do recall, even if later in their testimony their "memory comes back".

      2. Steve the Cynic

        Re: A real policeman once said

        > a witness who does not want to testify can always say "I don't recall."

        Yeah, I remember the case of one witness (perpetrator, even) who famously said that. A certain Lt Colonel of the US Marine Corps, in the 1980s, by the name of Oliver North.

        Side note: My late wife was, at that time, enlisted in the US Air Force (I have had a complicated life. Don't ask.) She had a couple of observations on the subject of Olly North:

        * In the USAF, the coverage of North's testimony before the Congressional committee made popular viewing.

        * While the Air Force enlisted and the Marine Corps enlisted don't really get on well, it was clear that the USMC rank and file were deeply ashamed of one of their senior officers standing up in his dress uniform and putting on such a spectacle.

        1. Stevie Silver badge

          Re: What Olly North Said

          Well actually there were two hearings, both televised.

          Hearing one, a sweating North said he could not speak in public about his part in things.

          Hearing two, a spiffily dressed Col. North in his dress uniform (all he was missing was a bull terrier on a leash sitting by his feet) proudly announced that he would only speak in front of the American public.

          I know because I was very sick at the time and only had a TV with rabbit ears.

      3. Stevie Silver badge

        Re: I don't recall

        Worked for Reagan during the Iran Contra hearings.

      4. Stork Silver badge

        Re: A real policeman once said

        It also works in Denmark. A politician (Viggo Fischer) answered "I don't remember that" or "I do not recall that" (in Danish) 107 times during an investigation, in oder to protect his superior.

        - to which the judge remarked: What a shame such a young man already suffers from dementia!

        1. Roj Blake

          Re: A real policeman once said

          There's also the case of Guinness boss Ernest Saunders who proved after his conviction for dodgy share trading that he really did have dementia. He was released from prison and his subsequent recovery was nothing short of miraculous.

          1. ElReg!comments!Pierre

            Re: A real policeman once said

            Yeah, clearly it's time to bring "enhanced" witness interrogation techniques to the courtrooms!

      5. Gigabob

        Re: A real policeman once said

        What - you don't mean just like all those Senators and Congressmen applying for Tumped up jobs?

    2. Bernard M. Orwell

      A question...

      ...for Mr. Comey.

      Given that you believe that no communication, verbal, electronic or otherwise, and in extrapolation no communicated thought, feeling or memory, is a protected characteristic of a citizens rights, what, precisely, is your agency protecting?

      If you dare answer with the word liberty once again then you need to do some hard thinking about what that, and similar terms, actually mean.

      In the interim might I suggest you get a big tarpaulin, sling it over the statue in the harbor (you've forgotten about it, haven't you?) and pop a sign on it that says "Out of Order" until further notice.

      Wake up, re-read the constitution, examine your history and remember who you actually want to be.

  2. Anonymous Coward
    Anonymous Coward

    failing at your job

    If you are a chief security officer and don't know your local FBI officer then you're failing at your job

    No, I don't believe so. As a security officer my job is to ensure that the systems are secure, not to play patty-cake with the political appointee of the week. If I have something to turn over or have to interface with law enforcement, then my contact is local law enforcement not Federal. It is up to the local guys and gals to determine whether the Feds need to be brought in - not me. If they do, the locals still continue to act as the information conduit anyways.

    Does he believe that the converse also true - that any FBI officer that doesn't know all of the private security officers isn't doing THEIR job?

      Black Helicopters

      Re: failing at your job

      Oh they KNOW you... you might not know that they're watching, but they are.

      *Cue sound of black helicopters emblazoned with large FBI lettering (also, tastefully in black).

      1. streaky

        Re: failing at your job

        Oh they KNOW you... you might not know that they're watching, but they are

        Evidence suggests if you're a technical C-level then at least one of NSA/GCHQ do and have considered if you'll be usable as a target in future or current operations for sure. Read the emails from the Gamalto stuff, scary shit for technicals. Always wear protection.

      2. el_oscuro

        Re: failing at your job

        "It’s the wild colour scheme that freaks me out. Every time you try and operate these weird black controls that are labeled in black on a black background, a little black light lights up in black to let you know you’ve done it."

    2. Doctor Syntax Silver badge

      Re: failing at your job

      "If you are a chief security officer and don't know your local FBI officer then you're failing at your job"

      "No, I don't believe so."

      You should look at it as a case of "know thine enemy".

      1. This post has been deleted by its author

  3. Anonymous Coward
    Anonymous Coward

    I'm not even American but you have the fifth amendment so please tell this prick to fuck off.

  4. Blofeld's Cat Silver badge

    Er ...

    "... Comey said that America's founding fathers had set down that there is a right to privacy but that the government has a right to intrude in the name of security. It was part of a 200-year old "bargain of ordered liberty," he opined ..."

    "Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins." - Benjamin Franklin, 1737

    "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin, 1755

    1. Justaname

      Re: Er ...

      "Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we." - G Bush 2004

      1. big_D Silver badge

        Re: Er ...

        Comey is living Bush's words - he is harming his own country.

      2. Anonymous Coward
        Anonymous Coward

        Re: Er ...

        a George W Bush classic - one of the most memorable streams of nonsense to come out of a head of government, but eclipsed since a certain Twitter feed made Dubya look like a thoroughly professional and insightful expert on all things..

    2. streaky

      Re: Er ...

      Freedom to speak or to assemble isn't a right to privacy. That's the fundamental problem here.

      US constitution doesn't guarantee a right to privacy. Not saying it's right but there's no explicit right recognised by the document. It's an enormous problem because if that right isn't guaranteed to US citizens there's no hope that the US government would acknowledge there's a right for non-US citizens.

      There is an implied and limited right that's badly codified for the modern world which is how they can get away with saying things like this because they are technically, legally, correct. These arguments have to be fought by statute law and by things like the right not to be searched illegally - the right to privacy in memory only exists to the degree that one's memory can't be illegally searched. Just wait till they can search your memory directly and a court can issue a warrant on that - it'll be a fun day.

      1. Charles 9 Silver badge

        Re: Er ...

        What about the Fourth Amendment that prohibits unreasonable search and seizure?

        1. streaky

          Re: Er ...

          Fourth Amendment isn't a right to privacy in explicit terms. It's a right not to have your person searched or say a server that belongs to you - and a warrant can break through that right if it's legally gained. You asked this whilst I was still mid thought stream on my original comment, see the edited version where I covered this.

          The only thing that stands between that right and you being searched is probably cause, which is a very low bar. Lets not even get started on exigent circumstances in times of terrorist attack fears.

          1. Just Enough

            Re: Er ...

            The difference between memories and social media/phones/servers/email is that memories are not covered by the Fourth Amendment. The FBI cannot seize your memories, and while you can be compelled to divulge them, you always have the following options;

            - Say you don't remember.

            - Misrepresent what you remember.

            - Omit parts of what you remember.

            - Lie about what you remember.

            So it's a very misleading comparison. Memories are easy to keep private.

            1. Charles 9 Silver badge

              Re: Er ...

              Until you're faced with a perjury charge. Remember the oath you must take before you testify: the truth, the WHOLE truth, and NOTHING BUT the truth. You lie (outright or by omission--half the truth, twice the lie as they say) at your own peril because they could have ways to back up their claims that don't necessarily involve you.

              1. nijam

                Re: Er ...

                > ... NOTHING BUT the truth

                That's a huge (sorry, yuge) amount of stuff to talk about. Most of us would die of old age long before we'd finished.

              2. Doctor Syntax Silver badge

                Re: Er ...

                "Remember the oath you must take before you testify: the truth, the WHOLE truth, and NOTHING BUT the truth. "

                I always found this a little odd. In practice one can only respond to counsels' questions. One of the tricks of a cross-examiner is to ask a question which framed to call for a yes/no answer but which, for the whole truth, requires a more discursive answer - which the cross-examiner then tries to suppress. I've also been in the odd situation of being, in effect, cross-examined by the side that called me in an attempt to make me put a stronger construction on my evidence than I considered reasonable.

      2. Eddy Ito

        Re: Er ...


        Freedom of speech also implies a freedom to not speak as compelled speech isn't free. It's one thing that always bothered me about the court system and its ability to compel a person to testify under threat of loss of liberty or fine. Further, considering how any such statements would, by definition, be made under duress I don't see how a jury can apply any real weight to that testimony.

        To your later point, you're absolutely right they will pull it directly from your head the instant they are able and likely without regard as to whether it does any damage to you or the memories or how reliable those memories might have been in the first place. I can see them going to great lengths to "enhance" the extracted memory to better understand in the same way they are always "enhancing" pictures in the cop shows.

      3. Chemical Bob

        Re: @streaky

        "US constitution doesn't guarantee a right to privacy. Not saying it's right but there's no explicit right recognised by the document."

        However, in Roe vs Wade, the Supreme Court has ruled that the Constitution's First, Fourth, Ninth, and Fourteenth Amendments protect an individual's "zone of privacy".

      4. tom dial Silver badge

        Re: Er ...

        Arguably, the right to privacy is implicit in the constitutional enumeration of things the government may or may not do and the structure in which they may do it. That begins with the preamble and includes, notably, Article I, sections VIII and IX, and is reiterated and reinforced by the tenth amendment and, in the case of search and seizure, the fourth amendment.

        The legislature often has taken an expansive view of government authority, always for what is thought at the time to be a good purpose. The resulting laws have not always worked out well, or as intended; legislators are people, and people are fallible. Legal authority for search and seizure may exceed what some think reasonable, but it is not obvious that a right to privacy, however defined, should be considered absolute.

    3. John Smith 19 Gold badge

      ""Those who would give up essential Liberty,.. temporary Safety, deserve neither...

      The full text was quite common on the signatures of emails on the 12th of September 2001.

      He and his ilk don't want a world free of crime.

      They want a world free of due process where they can read what they like, when they like and store it forever.

      This is the data fetishists manifesto.

      "Give me 6 lines from an honest man, and I will find something with which to hang him."

    4. tom dial Silver badge

      Re: Er ...

      Yet the same Benjamin Franklin presided over the Constitutional Convention. In the process, the tradeoff between government authority and personal liberties was one of the core issues, despite the fact that explicit statement of some rights and liberties was deferred to the Bill of Rights.

  5. scrubber

    Trust your government?

    Come back and talk to me when you've repealed the 1st, 5th and 14th amendments. Then maybe I can introduce you to the 2nd.

    Governments, and their hack appointees, are all well and good when they're on your side doing what you think you want them to do, but it's easy to get on their wrong side and every few years you might be passing that weapon of mass intrusion onto some incompetent man-baby to play with like a live grenade.

    1. FuzzyTheBear

      Re: Trust your government?

      if only they would explode every now and then ..

    2. Charles 9 Silver badge

      Re: Trust your government?

      "Come back and talk to me when you've repealed the 1st, 5th and 14th amendments. Then maybe I can introduce you to the 2nd."

      They could just ignore the whole bloody think as "ink on a page". As for the 2nd, they'll see your guns and raise you a few nukes.

    3. Primus Secundus Tertius

      Re: Trust your government?

      As a Brit, I like our way of doing things.

      THEY make the laws but WE decide whether to obey those laws.

      Germans have a very different attitude. Germans have said to me, the law is the law and should be obeyed. Somehow the USA has taken up that German position rather than the English one. Revolutionary animus, perhaps.

      1. Updraft102

        Re: Trust your government?

        You can't really compare the statements of regular German people you know to those of a US government apparatchik in terms of attitude towards the law.

  6. Allan George Dyer Silver badge
    Big Brother

    "a judge can compel any one of us to testify in court"

    So, do you think extending that to, "and corrupt law enforcement can hack to plant evidence for a quick conviction, or just when they feel like it" might be stretching the point a little?

    1. Charles 9 Silver badge

      Not really. More a logical extension. Civilization is overrated given the natural human tendency.

  7. Marketing Hack Silver badge

    Damned right, Comey!! Widespread encryption is Snowden's fault!!

    And door locks are everywhere because of all the whiners who cry about how their house got robbed!!

    /sarcasm off

    1. Sir Runcible Spoon Silver badge

      Re: Damned right, Comey!! Widespread encryption is Snowden's fault!!

      "In other news, a notorious leader of a wife-beating syndicate has stated that he blames the rise of martial arts defense courses for women on their ability to be able to speak and let others know they are being beaten. He proposes that all women should have an 'off' switch for their tongues."

      1. Charles 9 Silver badge

        Re: Damned right, Comey!! Widespread encryption is Snowden's fault!!

        Weren't women's tongues chopped off, among other things, in the distant past?

  8. JJKing


    He asked again for an adult conversation about the encryption debate

    Where in the FBI will they find an adult to participate in this conversation?

    1. MrDamage

      Re: FBI....Adults???

      The janitors office. They're the ones who have to pick up all the toys thrown out of the pram.

  9. Mark 85 Silver badge

    Where in the FBI Federal Government will they find an adult to participate in this conversation?

    FTFY.... I'm not seeing any adult conversation from any part of it right now.

    1. P. Lee Silver badge

      >FTFY.... I'm not seeing any adult conversation from any part of it right now.

      I'm wondering if they meant a different kind of "adult" conversation.

      For how much longer can US federal agencies keep up the charade? The BBC reports, "On Wednesday, the US officials - who spoke on the condition of anonymity - told US media that the criminal investigation was looking into how the files came into Wikileaks' possession."

      How do they keep a straight face when they complain that telling people about security failures which makes them less secure, results in a criminal investigation? If the FBI and CIA know these problems, what makes you think the Russians and Chinese don't? What about all those TV's in hotel suites diplomats and industry executives might be frequenting? Did you sweep for bugs? Yes, but there's little which can be done about the hardwired TV which is always on... and listening.

  10. Alistair


    I could go ranting on here.

    @Blofeld's Cat - thanks - those need to be left about to read.

    @ scrubber and AGDyer - again, clear points needed.

    @ ElReg -> && upvote.

    Encryption. Effective. Real. Exceptionally difficult to brute force. This is an absolute requirement in this world, for *all sorts* of reasons.

    No, we DO NOT need a central key exchange where we can drop off a copy for (choose relevant TLA of the week) to have handy. There are in *most* countries *already* in place simple effective laws that can be used to acquire keys, *and* relevant, appropriate penalties to deal with those that cannot or will not hand those keys over. They may not be obviously stated or clearly aligned with "The Internet Age", but the basic principle of law exists.

    Outside of *that* Mr Comey (or whatever twat this month decides to jump on that bus), I have no intention of letting you at my personal inventory of "data".


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