Cyber at the department of justice. Including Election Security issues to supply chain issues to crypto currencies and encryption and access to data. Peter what do you do . Do you bring cases against people that have violated u. S. Law . Is right. Our job is to enforce federal criminal law. Criminal cases against individuals, organizations, or nationstate actors that violate u. S. Federal law. There is a policy component to what i do which is to help form policies working with the congress and our interagency to advance rule of law issues around the world. Peter is your position political or career . I serve in a Political Office but my role is as a career employee. A little bit of both. I am a career person. Servers in a Political Office. How long have you been at the doj . 12 years. About three years ago, i moved to main justice. Encryption andd that has been in the news recently with the saudi terrorist in florida and the San Bernardino shooting several years ago. What is the current thinking when it comes to encryption and the doj . I appreciate the question. I should emphasize that at the department of justice we believe in strong encryption. We believe in making sure that data is secure. A major part of our mission is to prosecute cyber criminals that steel data and violate u. S. Law so we believe in encryption. We are worried about wa rrant proof encryption. It is so strong that essentially only the user can access the content of the data. It is problematic. When we go to a neutral judge to wek a warrant, increasingly are running into a situation where we cannot execute those lawful orders. To use the example that you mentioned the saudi shooter in pensacola had two iphones. There is a suggestion that there is information on the phone. We went to a federal judge who authorized us to seek the contents of the phone. The cousin of the way the phone had been engineered, we cannot get past the passcode on those phones. You can see the significant problem there. Where we have received a court order and we need access to the evidence to run down the investigation to see if there are other coconspirators. Even though we have a lawful there is nong it, technical means rust to get into those phones. If you extrapolate that out to broader society, the number of cases where people are engaging in child pornography have evidence on their phone but we cannot access it. That is fundamentally the problem we have. We have court authorization. We have gone through the requirements of the Fourth Amendment. But the way the devices have been created by the Tech Companies, we are not in position to access the contents. What happened to the saudi shooter xfone . Shooters phone . It is with the fbi. It backe able to put together. The shooter shot one of the phones and the other was in bad shape when recovered from his car. The fbi began to try to get into the phone. Andfbi took about a month exhausted all of its internal options. Spoke to foreign partners. Unfortunately, none of those partners were able to help us. We spoke to the thirdparty vendor community. They deal with creating hacking tools. None of those options have worked. In early january, we reached out to apple seeking its of pasttance to help us get the security functions that the company has put into the phones. I say those fbi efforts continue. I wont get into specifics. The fbi does continue on its own using its own tools to gain access but we have reached out to the company because they designed the product to help us figure out how to get in and execute this lawful court order. Can you compel apple to break into the phone . Is apple capable of doing that . There are certainly legal questions around that. In the San Bernardino case, similar circumstance. The Justice Department did take apple to court. And sued the company under the federal all writs act. Tot is the Legal Mechanism force a third party to a sensually a cyst federal investigators in the execution of a court order. That would be the Legal Framework under which any kind of litigation would pursue. Our goal is to avoid litigation and work with the company productively and in a voluntary way to ensure that all of the aspects of security are protected. But when investigators show up with a court order, they have the ability to execute the court order. Is there a slippery slope there . Im glad you mentioned the privacy issue. Under our amendment system is what draws the line when it comes to privacy. There is inherently a balance between privacy which is very important and public safety. Whatarrant requirement is draws the line. When a federal magistrate judge weighs the pros and cons and decides to award a werent coming he or she has checked all of the boxes that the constitution requires between public and privacy and draws the interest in favor of public safety. That is why i think there is no privacy issue here. Warrant, you a satisfy the privacy interest. When it comes to a dead terrorist, there is no privacy issue. The person that is dead has no Fourth Amendment rights. It is a ruleecause of law agency nevertheless went to a judge seeking that order. It is not privacy versus security because once we get the court order, we have satisfied the very significant privacy interests at stake. Is there a comparison to u. S. Mail or email when it comes to this case and phones . Whenever we see content as a matter of privacy, we seek warrants. Search someones mail, we go through that Fourth Amendment analysis. Physical mail. Email. It is a matter of policy that we go to a federal judge, a neutral arbiter, get a search order to search the content. A is the same to search phone. Your phone has a lot of personal Sensitive Information about you. When we search it, we make sure that we first go to a judge and get that constitutional checklist kicked off. Off. Cked there are analogues. When we satisfy the Fourth Amendment requirement, we should have access and it is no different with a letter or email and it should we know different with a physical, electronic device. What about endtoend encryption . How will that affect your work . It has Significant Impact on Law Enforcement functions. We has spoken very publicly with the attorney general. He issued a statement. And to and were to encrypt all of the communications on its platform which the company has said it have ao do, that could Significant Impact on Child Exploitation investigations in particular. What often happens is that people who are exploiting children will communicate and groom children using a popular messaging platform. Orcommunicate over facebook instagram. Right now, facebook does a pretty good job right now in monitoring its own networks. If child pornography is being traded across the network. If it sees that through an algorithm, it reports that to the National Center for missing and exploited children. Millions and millions of tips were provided to the National Center last year. 18 million tips from facebook. Encrypts itsnd and platforms, the company itself will lose visibility into what is happening on its platforms and the estimation is about 70 70 5 of those tips will go dark. Think about all the children being abused as we speak that we will not be able to track down. That is a concrete manifestation of what that encryption can do. A related point. Apple has already end to end encrypted its messaging system. If you compare the number of cyber tips that facebook submitted last year and apple which reported Something Like 100 or 10020i think, that is the difference. It is not that apple magically where non platforms one is engaging in child pornography. It is that apple has chosen to blind itself to what is happening through its munication networks and thus is unable to produce these tips to the National Center for missing and exploited children. Manifestationrete of what this kind of encryption can have on the Law Enforcement function. We believe in encryption. Wantspartment of justice to protect people from having their data stolen. The particular implementation of encryption, the military grade, rant proof encryption is what is of concern. An example is gmail which is encrypted from the person sending the message, to google , toers, to google servers the recipient. A secure means of communication. There is a moment on google servers where the information is decrypted. Why is that . Wants to filter the material for malware, viruses, and to make sure that what is happening is not compromised. Google can also execute a search warrant at that moment. Proofis not warrant encrypted. That is all we are asking for. Of encryptions and Keep Communications secure and yet still allow for the processing of lawful court orders. That is a model that seems to work. How do other countries do it . A couple different ways to look at it. You can go off to the far spectrum which is authoritarian nations. China. Russia. They have very intrusive Cyber Security laws on the books that if you look at them on paper require companies to turn over all sorts of information. That is an open question. We dont know exactly how Companies Like apple are complying or not complying with chinese law. A do know they have made number of accommodations, particularly in the last year in quitese to these authoritarian regimes. A small example is when the Chinese Government complained about the taiwan emoji being available on apple iphones sold in china, the company buckled once the Chinese Government said get rid of it. Apple has made all sorts of accommodations to authoritarian regimes. A bigger and more important example is chinese Cyber Security law requires companies makestore data locally and access to that Data Available on any kind of government request. Apple did not push back. It formed a joint venture with a local Chinese Company and as far as we know is storing all chinese user data in china. Our concern is that the company has already made a number of accommodations to authoritarian regimes which have no due process or rule of law values. In america, we are a rule society. And it is really troubling to us that they have pushed back so hard against us when we come with a lawful court order issued by a neutral federal judge and yet we have no insight into what is happening in authoritarian regimes. That is one answer to your question. Authoritarian countries will move irrespective of what we do here at home. We have other examples from the United Kingdom and australia that have started enacting legislation because they recognize it you need to find the right balance between privacy and public safety. Agou. K. A couple of years has the Investigatory Powers Act allowing their government access under certain circumstances. Australia last year and a which is also a step in the right direction. We are seeing globally that rule of law countries are moving in ways that we support and that authoritarian regimes are moving in ways that give us considerable pause. As a society here in the u. S. , we need to be part of the broader International Conversation the risk of falling behind. It is such a pressing Public Policy issue there needs to be an active debate in the United States. Right now, it is the Tech Companies that are making policy. It is their Technical Innovations that are setting the bar and that is how we should be in a democratic society. The two cases that we talked about San Bernardino and pensacola they were both apple phones. Would it make any difference if it was a korean Samsung Phone . It should not. Our Legal Authority is company neutral. Itm a legal perspective, would not make any difference what company we are talking about. How much of your time is spent on Digital Currency . They are a significant part of what i do. Crypto currencies have the potential for great innovation. It alsoern is that creates an opportunity for bad actors that are not in a regulated space to engage in money flows across borders. Our concern is that the dark web, you see a lot of people work on the dark web with crypto currencies. Our goal is to have insight into what is happening when people are exchanging money. It is one of our priorities. Act thato the lawful we talked about. When there is a reason for Law Enforcement to gain information, that we maintain that ability to gain access. One of the secrets about bitcoin is nobody knows who owns it and where it is located. Correct . Is an interesting example. You can track Bitcoin Transactions. It is a publicly available distributed measure. The way it works is you can track Bitcoin Transactions because they have to be la logged they have to be in a publicly available ledger. Bitcoin itself is something we can track under appropriate circumstances. What is concerning to us is there are a number of crypto currencies that are more peer to peer. Similar to the communication issues we have been talking about. There is no centralized ledger. Policyg significant issues for us for the money terrorist and financing that we talked about earlier. We have no interest in snooping on people. When we have a court order, we want to gain access or insight into what is happening. What is happening more frequently is these crypto currencies do not comply with u. S. Laundering rules. We have considerable concern that a lot of that information is not accessible to us even with court authorization. Where do you gain the expertise on these crypto issues . I am lucky because i have access to some of the smartest people in the government. When we try to form policy on these issues, we talk to the experts, our prosecutors in the field, our fbi agents, our colleagues in the Intel Community to get as much insight as we can an advocate or intelligent, reasonable Public Policy. What is the role of congress in developing these . An active role. Rule. Emocracy, the people it is up to congress to come up with intelligible laws in this area. We are trying to contribute to that conversation as appropriate. The associate Deputy Attorney general. He has been our guest on the communicators. Thank you. Now joining us on the communicators is jim baker. Mr. Baker, how does one become the general counsel of the fbi . What is the word about how you get to practice . Practice. I worked in the department of justice for a long time and among other things in terms of aiming technical absurdities expertise, i built a lot of relationships including one with , jim comey. We worked together at doj and then in the public sector. When he became director, he asked me to take on that job. How long were you in that position . Four years. What did the technical part of that job entail . Multiple things. The general counsel. A lawyers job. You have to be a lawyer. Theing enough about important areas of the law that the fbi deals with in order to be able to spot issues, figure how to is help you need, answer questions from senior executives, how to bring in the right people. My goal was to not just give the best answer that i had but to make sure that the bureau got the best answer that there was. That sometimes might mean me giving that answer but often it usually involves bringing in other experts from inside the bureau, the department of justice, or some other government agency. In your fbi career, did you find year after year, an increase in technical or Technology Cases increasing . Absolutely. Over the years. I worked for the department of justice from 1991 until 2018 and technology became much more important to the point that really today i think lawyers are not competently representing their clients if they do not have a sufficient understanding of technology. This is something i preach frequently to the folks that work with me at the office of general counsel and elsewhere. It does not matter what area of the law you working today. Understand technology sufficiently. It does not need that mean that you need to know how to write code but you need to be able to spot the legal issues out there, address concerns that your client has. And the client the men and women of the fbi doing investigations, art themselves using are themselves using under the law. Why did you leave the fbi in 2018 . You mayt it because as have heard that jim comey got fired and chris wray the game the fbi director. Chris back when he was at the department of justice. Certainogical at a point in time that he wanted to bring in someone no. He asked if i would step aside. One of the issues you dealt with was the San Bernardino shooting. Remind us of what that was a what was your role . This was a terrorist attack if im notcember mistaken. Many people were killed and wounded. The information we had was that by an isisucted affiliated person or persons that claimed to be affiliated with isis. A terrorist attack in the United States. We realized that the perpetrators had, among other things, an iphone. An iphone, given how people use technology today, anyones smartphone is likely to have a lot of information about that